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HomeMy WebLinkAbout2247808-Declaration_07-06-2021 J-447 Recording Requested By and When Recorded Return to: O o ivp �IIIII IIIII IIIII IIIII�IIII dill IIIII�I III�illl IIII II I Page: 1mlof 47869 Shelley Vance-Gallatin Cc MT MISC 349.00 ------------------------------------------------------------------------------------------------------------- DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS BOZEMAN GATEWAY THIS DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS ("Declaration") is made as of the 1$ Iday of , 2006, by MITCHELL DEVELOPMENT GROUP, LLC, a Montana limited liability company("Declarant"). RECITALS A. Declarant is the owner of the real property located in the City of Bozeman("City"), County of Gallatin("County"), State of Montana("State"), described in Exhibit "A"which is attached to this Declaration("Entire Property") and shown on the map which is attached to this Declaration as Exhibit "B" ("Parcel Map"). B. Declarant desires to develop and operate the Entire Property as a mixed use development which may consist of retail, commercial,office, hotel, residential and related facilities ("Project") and,therefore, wishes to establish certain easements, covenants and restrictions on the Entire Property and/or portions of the Entire Property. It is currently anticipated that the Project will be consist of at least five(5)phases ("Phase" or"Phases") as shown on the Phasing Exhibit attached hereto as Exhibit "C" ("Phasing Plan"). It is currently anticipated that(a)Phase I will be developed as a convenience shopping center, (b)Phase 2 will be developed as pad sites, (c)Phase 3 will be developed as commercial office,(d)Phase 4 will be developed as a lifestyle center; and(e)Phase 5 will be developed as an office complex; all as generally shown on the Site Plan(defined later). In addition to the foregoing Phases,the Project also consists of the roads located within the Project as shown on the Parcel Map ("Project Roads")and the Open Space Parcels shown on the Parcel Map ("Open Space"). Declarant shall have the ability to change the boundaries of the Phases and the property located therein and the layout of improvements thereon and the uses therein in accordance with the terms and conditions of this Declaration. C. In connection with the development of the Project or thereafter, Declarant may further subdivide, sell, convey, lease or hypothecate all or portions of the Entire Property. � of24? 47 Shelley Vance-Gallatin Cc MT MISC 349,00 NOW, THEREFORE, in recognition that for the optimum development and operation of the Project as an integrated project, it is necessary that Declarant establish certain covenants running with the land respecting certain matters, including but not limited to matters relating to the construction and maintenance of facilities on, and the use and restrictions on the use of, the Entire Property. Declarant declares that all Persons who acquire or occupy portions of the Entire Property shall take subject to this Declaration in order that all development on the Entire Property and the operation of the Project will be in conformity with this Declaration. Notwithstanding a conflict between the terms of this Declaration and the provisions of a particular agreement such as a tenant lease or other occupancy agreement between an Owner and its Occupant, (i)as among the Owners and their respective successors and assigns, this Declaration shall control over such an agreement, and(ii)all Occupants shall be bound by the terms of Articles I, III, IV, V, VI and XI of this Declaration and the Rules and Regulations, if any, attached to this Declaration,except to the extent that the provisions contained in such Articles and Rules and Regulations indicate that the terms of an Occupant's lease may control. In all other respects, the terms of an Occupant's lease shall control over any conflicting provision of this Declaration. ARTICLE I DEFINITIONS 1.01 Assessment Lien. "Assessment Lien" is a lien placed on a defaulting Owner's Parcel for sums owing to Declarant under the provisions of this Declaration. 1.02 Benefitted Parcel. "Benefitted Parcel" is any Parcel benefitted by an easement, covenant, condition or restriction made or suffered by an Owner by the terms of this Declaration. Any such benefit shall run with the land in favor of the Owner(s) of the Benefitted Parcel(s), and shall be enforceable as an appurtenant easement, covenant running with the land, and/or as an equitable servitude. 1.03 Building. 'Building" or"Buildings" is any building located in an area of the Entire Property designated on the Site Plan as Building Area. 1.04 Building Area. "Building Area" is any portion of the Project within 'building limit lines," as shown on the Site Plan. Building Area represents the only area within which Buildings are permitted. The precise location of any Building within its Building Area is subject to Declaranfs prior approval. The proposed locations of Buildings within their respective Building Areas are depicted on the Site Plan; however, the precise configuration of the Buildings is subject to change within the pertinent Building Area. Vertical improvements,other than pylon signs, monument signs and trash enclosures, may be located only in a Building Area. Building canopies and other architectural treatments, loading docks and ramps, staging, storage and Outside Sales Areas, and"drive-thru" areas may be located outside Building Areas if approved by Declarant or if shown on the Site Plan as lying outside the Building Area. 2 f IIIIII lull IIIII IIIIII IIII IIIII llllllf f II IIIII IIII IIII � 78 $ 59P Shelley Vanoe-Gallatin Co MT MISC 349.00 1.05 Burdened Parcel. "Burdened Parcel" is any Parcel subject to and burdened by an easement, covenant, condition or restriction made or suffered by an Owner by the terms of this Declaration. Any such burden shall run with the land and bind all Owner(s) of the Burdened Parcel(s)and shall be enforceable as an appurtenant easement, covenant running with the land and/or equitable servitude. 1.06 Common Area. "Common Area" is that portion of the Project intended for the nonexclusive use by all Owners,Occupants and Permittees,and shall include all areas of the Project, together with the Open Space and the Common Area Improvements constructed on the Entire Property,other than(i) any area designated on the Site Plan as Building Area and/or actually occupied by building improvements and(ii)any loading dock,ramp, storage or staging area or "drive-thru" area utilized by a single Occupant. Following the development of a Building within its Building Area,the portion of such Building Area not actually used for vertical improvements or for a loading dock, ramp, storage or staging area, or "drive-thru" area approved by Declarant shall be improved as and shall be deemed a part of the Common Area. All non- Building Areas on a Parcel (excluding any loading dock,ramp, storage or staging area,utilized by a single Occupant) shall be improved as, and shall be deemed to be, Common Area for purposes of this Declaration. 1.07 Common Area Maintenance Costs. "Common Area Maintenance Costs" are all expenditures, costs, premiums and expenses incurred by Declarant during any given accounting period for maintenance, lighting and security,repair, or replacement of the Common Area, including, but not limited to,those items listed in Section 7.03. 1.08 Common Area Improvements. "Common Area Improvements" are the improvements depicted on the Site Plan as within the Common Area and the common utility lines and systems to be constructed(or caused to be constructed)by Declarant, all directional signs, Project identification signs including pylon or monument signs (excluding, however, any portion of such signage that relates to a particular Occupant), Parking Areas, streams,ponds, bridges, curbs, sidewalks, bike and walking paths, and any landscaped areas within the Common Area plus any other common facilities in and/or under the Project. 1.09 Declarant. "Declarant"means not only Mitchell Development Group,LLC,but shall also be deemed to include its successors and assigns (as designated by Mitchell Development Group, LLC). l.I0 Default Rate. "Default Rate" is the lower of fifteen percent or a rate equal to six percent(6%)in excess of the base rate on corporate loans posted by at least seventy-five percent of the nation's thirty largest Banks, as published by the Wall Street Journal. 1.11 Development Manual. "Development Manual"means The Development Manual of Bozeman Gateway prepared by Developer and approved by the City in connection with its approval of the Project(as the same may be amended, supplemented or modified by the 3 111111111111111111111111111 2247808 . of47 IIIIIIIIIIIIIIIIIIIIIIIIIIII ,, 09/2006 02.59P Shelley Vanoe-Gallatin Co MT MISC 349.00 Developer and the City from time to time). A copy of the Development Manual is available at the offices of Developer and the City Planning Department. 1.12 Entire Property. "Entire Property" is the real property described in Exhibit "A" and any real property which may subsequently be made subject to this Declaration by amendment of this Declaration. This term is sometimes used interchangeably with the term "Project." 1.13 Environmental Laws. "Environmental Laws" are all present and future federal, state or local laws, ordinances,rules, regulations, decisions and other, requirements of governmental authorities relating to the environment or to any Hazardous Material, including the following federal laws,as they may have been amended from time to time: The Comprehensive Environmental Response,Compensation and Liability Act, the Superfund Amendment and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, the Safe Drinking Water Act, equivalent Montana statutes, and regulations adopted, published and/or promulgated pursuant to those laws. 1.14 Floor Area. "Floor Area" is the aggregate number of square feet of floor space, from time to time, of all floors in any structure, whether roofed or not,whether or not actually occupied, including basement areas, subterranean areas, mezzanines and upper-story floors (except as provided below)measured from the exterior faces or the exterior lines of the exterior wails (including basement walls) or, in those instances where a common wall exists, measured from the mid-point of any such common wall which an Occupant shares with another Occupant. The term "Floor Area" shall not include any of the following: (a)the upper levels of any multi-deck stock areas created for convenience to increase the usability of space for stock purposes; (b) areas,whether physically separated or whether otherwise required by building codes, which are used exclusively to house building operating equipment not belonging to an Occupant and not exclusively serving a specific Occupant's premises such as building mechanical, electrical, telephone, telecommunications, and HVAC equipment; (c) all service areas, truck loading areas, truck parking, turn around and dock areas and ramps and any"drive-thru" areas; (d) all Common Areas; and (e) a Project management office. Within thirty(30) days of opening any business within a Building constructed on its Parcel such Owner's architect shall certify to Declarant the amount of Floor Area applicable to each Building on its Parcel. In addition, before the scheduled opening date of such business 4 IIIII 2247808IIIIIIIIIIII El 11111111111111111111 III P Shelley Vance-Gallatin Cc MT MISC 349A0 within the Owner's Building and within ninety(90) days after the actual date of opening of such business,the Project Architect shall have the right to enter the Building for the purpose of measuring the Floor Area of the Building. A copy of the Floor Area calculation shall be provided to both Declarant and Owner. If the Floor Area measurement obtained by the Owner is more than two percent (2%) less than the Project Architect's measurement, the Owner may elect to dispute the Project Architect's statement of Floor Area by providing Declarant written notice of such deviation and providing Declarant with a copy of the Owner's lower Floor Area measurement certified by the Owner's architect or engineer. If such a dispute arises, Declarant and the Owner or their representatives shall meet and use their good faith efforts to agree on the proper measure of Floor Area for purposes of this Declaration, if such an agreement is not reached within thirty (30) days of the Owner's election to dispute the Project Architect's measurements, this matter shall be subject to arbitration by a neutral architect or engineer selected by the Declarant and the Owner; provided, however, that if either party refuses to reasonably cooperate with the selection of an arbitrator,or the commencement and the completion of the arbitration, the Floor Area measurement of the other party shall govern for purposes of this Declaration. All Floor Area measurements shall be made in conformity with the foregoing definition of Floor Area. If any Owner causes an as-built survey to be prepared with respect to any portion of the Project, such Owner shall furnish a copy of the survey to Declarant. During any period of rebuilding, repairing, replacement, or reconstruction of a Building, the Floor Area of that Building shall be deemed to be the same as existed immediately prior to that period. Upon completion of the rebuilding,repairing, replacement, or reconstruction, the Owner upon whose Parcel the Building is located shall cause a new determination of Floor Area for the Building to be made in the manner described above, and the determination shall be provided to Declarant. 1.15 Grantee. "Grantee" is any Owner(including Declarant)of a Benefitted Parcel in which Parcel's favor a Grantor has reserved or granted any easement, covenant, condition,or restriction, whether by a separate grant or conveyance or by virtue of taking title subject to this Declaration. 1.16 Grantor. "Grantor" is any Owner(including Declarant)of a Burdened Parcel that is subject to any easement,covenant, condition, or restriction reserved or granted, whether by a separate grant or conveyance or by virtue of taking title subject to this Declaration. 1.17 Hazardous Material. "Hazardous Material" shall mean materials and substances defined as "hazardous substances," "hazardous materials ""hazardous waste," "toxic substances," including asbestos, polychlorinated biphenyls,petroleum(or petroleum fuel products), hydrocarbonic substances,and constituents of any of the foregoing, or other similar designations under any Environmental Laws or any regulations promulgated thereunder; and further,any substance or material which because of toxicity, corrosivity, reactivity, ignitability, carcinogenicity,magnification or concentration within biologic chains presents a demonstrated threat to biologic processes when discharged into the environment. 5 1111111111111111111111111111111111111111111111111111111 2a47f 47 Shelley Vance-Gallatin Cc MT MISC 349.00 1.1 S Lot. See Section 1.23 below. 1.19 Mortgage and Mortgagee. The term "Mortgage" means (a) any mortgage, trust indenture, deed of trust,or contract for deed on the interest,whether fee or leasehold, of an Owner in a Parcel and, to the extent applicable, a "sale and leaseback" or "assignment and subleaseback" transaction entered into for financing purposes. "Mortgagee" shall mean a mortgagee under a mortgage, the trustee and the beneficiary under a trust indenture or deed of trust,or the seller under a contract for deed, and to the extent applicable, a fee owner or lessor or sublessor of any Parcel which is the subject of a lease under which any Owner becomes a lessee in a so-called "sale and leaseback" or"assignment and subleaseback" transaction entered into for financing purposes. 1.20 Occupant. "Occupant" shall mean any Person from time to time entitled to the use and occupancy of any portion of a Building in the Project under an ownership right or any lease, sublease, license, concession or other similar agreement. 1.21 Outside Sales Area. "Outside Sales Area" means any area used by an Occupant for temporary or permanent sales, display, customer service or seating and/or storage purposes, including but not limited to patio areas,which areas are located outside of the structure of that Occupant's Building. As set forth in Section 6.03, Outside Sales Areas are subject to Declarants approval. 1.22 Owner. "Owner" is the Person who owns the fee interest in a Parcel,unless the Parcel is subject to a contract or contracts for deed, in which case the "Owner" is the buyer under the most recent contract for deed. The identity of the Owner will be determined from the Official Records of the County, as of the date of the exercise of powers or rights or the performance by such Owner of obligations created by this Declaration. Such reference shall include any Person designated in writing by the Owner to act in the manner and at the time provided herein with complete authority and in the place of such Owner in the matter for which action is taken, powers exercised,or performance required, provided such written authority shall be recorded in the Official Records of the County Recorder, and provided fialher that: (i)If the whole of the interest of any Owner in and to the Parcel in which such Owner has an interest is assigned,transferred, or conveyed,provided such Owner does not retain any beneficial interest other than under the terms of a contract for deed, trust indenture,deed of trust, or mortgage or without simultaneously acquiring a new interest by way of leasehold, life estate or other possessory interest, then the powers conferred upon such Owner shall be deemed assigned, transferred or conveyed and the obligations assumed with its interest; (ii) If the whole of the interest of an Owner in and to the Parcel in which it has a present interest is assigned, transferred or conveyed, but a new interest is created in such Owner simultaneously with the assignment, transfer or conveyance of such interest by way of leasehold or similar possessory arrangement, or in the event such Owner shall convey its interest in said 6 page! 7 2247808 f47 1111IIIIIIII IIIII IIIIII III1 I1111 lllli I Shelley Vance-Gallatin Cc MT MISC 349.00 Parcel or any part thereof by mortgage,trust indenture,deed of trust, or other security instrument as security for indebtedness, then none of the powers or obligations conferred upon such Owner shall be assigned, transferred, conveyed or released,but all of the powers and obligations referred to in this Declaration shall remain in such Owner so long as it retains any possessory interest in and to said Parcel other than as a beneficiary under the terms of a deed of trust or mortgage. In the event the interest of such Owners referred to in this subparagraph(ii) shall cease and terminate, then upon such termination the powers and/or obligations of such Owner shall otherwise vest in accordance with the other provisions of this Section; and (iii)If an Owner transfers its present interest in its Parcel or a portion of that interest in such a manner as to vest its interest in its Parcel in more than one Person, then not less than fifty- one percent(51 %) in interest of the transferees shall designate one of their number to act on behalf of all of the transferees in the exercise of the powers granted to the Owner under this Declaration. So long as the designation remains in effect, the designee shall be an Owner under this Declaration and shall have the power to bind such Parcel and such transferees, and such transferees shall not be deemed to be Owners. Any such designation must be in writing and served upon the other Owners hereto by registered or certified mail; and must be recorded in the Official Records of the County. In the absence of such written designation with respect to the exercise of the powers vested by this instrument,the acts of the Persons constituting the Owner whose interest is so divided shall be binding upon all Persons having an interest in such Parcel until such time as written notice of such designation is given and recorded in the Official Records of the County. 1.23 Parcel. The terms "Parcel' and "Lot" are used interchangeably in this Declaration. A "Parcel" or"Lot" is any of the lots or tracts which comprise the Entire Property until such time as one or more of such lots or tracts are re-subdivided into a different configuration of legal lots, or a new legal lot is added to the Entire Property,or one or more of the existing lots or tracts are modified. Effective upon any such change or addition, "Lot(s)" or"Parcel(s)" shall mean the legal lots comprising the Entire Property. 1.24 Parcel Map. "Parcel Map" is the map of the Entire Property which is attached to this Declaration as Exhibit "B". 1.25 Parking Areas. "Parking Areas" are all vehicular parking spaces, driveways, and loading areas, and includes the areas shown as 'Parking Areas" on the Site Plan plus any Building Area not used for Building improvements and designated as Parking Area by Declarant. 1.26 Permittees. "Permittees" shall mean the Owners and all Occupants and their respective officers, directors,employees, agents, contractors, customers,vendors, supplies, visitors, invitees, licensees and concessionaires insofar as their activities relate to the intended use of the Project. Among others, Persons engaging in the following activities on the Common Area will not be considered to be Permittees, except to the extent such activity is protected under the United States Constitution or the State Constitution as a free speech activity: 7 i 11EI 11H 111111111111111111111111111111111 1111 II I I Page: 'f 7 P Shelley Vance-Gallatin Cc MT MISC 349.00 (i) Exhibiting any placard, sign or notice; (ii) Distributing any circular,handbill,placard,or booklet; (iii) Soliciting membership or contributions in or for any organization; (iv) Parading,picketing or demonstrating; or (v) Failing to follow regulations relating to the use of the Project. 1.27 Person. 'Person" or "Persons" is any individual,partnership, firm, association,joint venture, corporation, limited liability company; or any other form of entity. 1.28 Project. "Project" shall mean the mixed use development and related Common Area on the Entire Property. This term is sometimes used interchangeably with the term"Entire Property." 1.29 Project Architect. "Project Architect" is the licensed architect designated from time to time by Declarant to render advice and to make judgments respecting the design of the Project. Initially, the Project Architect is [Carter Burgess]. 1.30 Rules and Regulations. "Rules and Regulations" are those rules and regulations adopted by Declarant from time to time,pertaining to the operation and use of the Common Area by all Owners, Occupants,and Permittees. 1.31 Site Plan. "Site Plan" is the Site Plan attached to this Declaration as Exhibit"D" and incorporated by this reference, as it may be amended from time to time by Declarant. ARTICLE II CONSTRUCTION OBLIGATIONS 2.01 Construction of Common Area Improvements. Declarant shall construct, or cause to be constructed,the Common Area Improvements on each Phase in conjunction with and as necessary to service the Building construction on such Phase. It is anticipated that in connection with the sale and conveyance of any Parcel within the Project upon which Common Area Improvements have not been constructed, that Declarant and the purchaser of such Parcel shall enter into a development(or similar)agreement that will address and allocate the responsibility for the construction and payment of Common Area Improvements on and/or servicing such Parcel. 2.02 Construction of Buildings. In order to maintain an architecturally compatible Project, the initial construction of all Buildings in the Project(and any subsequent additions, alterations, exterior remodeling, or reconstruction of Buildings in the Project) shall be performed only in accordance with approved plans for the work as provided in this Declaration, and in conformance with the Development Manual and the "Conditions of Approval" given to the overall project. Prior to commencing such work, each constructing Owner shall submit to Declarant detailed plans and specifications as to the exterior of the Building including artist 8 111111111111111111111111111111111111111111 + � '$�� 111II1Ili 1111 11/09/2006 02:59P Shelley Vance-Gallatin Cc MT MISC 349A0 exterior renderings,exterior elevations, descriptions of colors and materials to be used, layouts and descriptions of exterior landscaping, exterior wall configurations, door and storefront configurations, canopies and overhangs,column locations, lighting fixtures,proposed roof plans, all surface drainage features, if any, and exterior sign dimensions, colors, treatments and locations. Declarant shall either reasonably approve, disapprove, or make recommendations for change in such plans within thirty(30)days of receipt of the plans. After any disapproval or recommendation for change,the constructing Owner shall consult with Declarant to establish approved plans for the exterior portion of the proposed work. If the Owner and Declarant disagree after consultation, Declarant's decision shall be final. Approval of such plans by the Declarant shall not constitute assumption of responsibility for the accuracy, sufficiency,or appropriateness of the plans, nor shall approval constitute a representation or warranty that the plans comply with applicable laws. No material deviation shall be made from the approved plans without the prior written approval of the Declarant. 2.03 General Construction Requirements. (a) Building Area. All Buildings to be constructed by Owners may be located only within the Building Areas designated on the Site Plan for those Buildings and if a maximum floor area designation for any Building is shown on the Site Plan or imposed by Article V of this Declaration, the designation shall not be exceeded. (b) Compliance With Laws. All construction activities performed by an Owner within the Project shall be performed in accordance with the terms and conditions of this Declaration, the requirements and standards of the Development Manual, and in compliance with all laws,rules, regulations, orders and ordinances of the city, county, state, and federal governments, or any department or agency thereof, affecting improvements constructed within the Project. (c) Interference. The construction activities of an Owner shall not: (i) cause any unreasonable increase in the cost of constructing improvements upon another Owner's Parcel; (ii)unreasonably interfere with construction work being performed on any other part of the Entire Property; (iii) unreasonably interfere with the use,occupancy, or enjoyment of any part of the remainder of the Entire Property by any other Owner, its occupants, or its Permittees; (iv) cause any other Owner to be in violation of any law,rule,regulation, order, or ordinance of the City, County, State or federal government, or any department or agency of those governments. 9 11111111111 11111 IIIIII IIII IIIII flllII1 III IIII11 Ili 1111 Page: 102247808 11/09/2006f 02?59P Shelley Vance-Gallatin Co MT MISC 349,00 (d)General Construction Indemnity. Each Owner shall defend, indemnify and hold harmless each other Owner from all claims, actions and proceedings and costs incurred in connection therewith(including reasonable attorneys'fees and costs of suit)resulting from any accident, injury, loss, or damage whatsoever occurring to any Person or to the property of any Person arising out of or resulting from the performance of any construction activities performed or authorized by such indemnifying Owner. Any damage occurring to any portion of the Project as a result of such construction work shall be the responsibility of the Owner performing such construction work or causing such construction work to be performed and shall be repaired by such Owner, at such Owner's sole cost and expense, to the same condition as existed immediately prior to such work promptly upon the completion of such construction work. (e)Staging Storage and Access Points. Prior to constructing,reconstructing,remodeling, or enlarging a Building on its Parcel, an Owner shall give Declarant at least thirty(30)days prior notice of the proposed location of any temporary staging and storage area. All storage of materials and the parking of construction vehicles, including vehicles of workers, shall occur on the portions of the Parking Area which are on or adjacent to the constructing Owner's Parcel, and which will not unreasonably interfere with access between that Parcel, the other areas of the Project, and the public streets or roadways adjacent to the Project. All laborers, suppliers, contractors and others connected with such construction activities shall use only the access points located upon the constructing Owner's Parcel unless that Parcel has no access points to a public street, in which case such Persons shall only use the access points approved by Declarant. If substantial work is to be performed, the constructing Owner shall fence off the temporary staging and storage area. Upon completion of the work, the constructing Owner shall restore the affected Common Area to a condition at least equal to that existing prior to commencement of the work. (f)Temporary License. Each Owner and its contractors, materialmen, and laborers shall have a temporary license for such access and passage over and across the Common Area as shall be reasonably necessary to construct and/or maintain improvements on the Parcel of such Owner; provided, however, that this license shall be in effect only during periods when actual construction and/or maintenance is being performed,and provided further that the use of this license shall not be exercised so as to unreasonably interfere with the use and/or operation of the Common Area by others.Any Owner availing itself of the temporary license shall promptly pay all costs and expenses associated with such work, shall diligently complete such work as quickly as possible, and shall promptly clean the area and restore the affected portion of the Common Area to a condition which is equal to or better than the condition which existed prior to the commencement of such work. (g) Construction Barricades. Construction of a Building within any Building Area within one hundred eighty feet(180')of a Building that is open for business shall be screened from view by a barrier or fence of a type and height approved by Declarant until completion of the construction in each case. 10 >1111111111111111 Page: 11 of 47 2247808 1 11111111111111111 11/0912006 02:59P Shelley Vance-Gallatin Co MT MISC 349.00 2.04 Construction Along Common Boun4M Line. Any Owner constructing,repairing,or restoring a Building along a common property line between Parcels shall do so in a manner that does not result in damage to the improvements in place on the adjoining Parcel, and if applicable shall further undertake and assume at its sole cost the obligation of completing, repairing, reconstructing, and maintaining the nominal attachment(flashing and seal) of its Building to that of the Building on the other Parcel, it being the intent of Declarant to establish and maintain in these situations the appearance of one continuous building complex. 2.05 Mechanic's or Construction Lien. If, because of any act or omission(or alleged act or omission) of any Owner or its Occupant, or a contractor,employee or agent of either,any mechanic's or construction lien is fled with respect to any portion of the Project(whether or not such lien is valid or enforceable as such), the Owner shall cause the lien to be discharged of record, or bonded, with respect to all portions of the Project not owned by that Owner,within thirty(30)days after it was filed; and the Owner shall indemnify and save harmless all Owners, all ground and underlying lessors, and all Mortgagees with respect to any portion of the Project against and from all costs, liabilities, suits,penalties,claims,and demands, including reasonable attorneys' fees resulting therefrom. If the Owner fails to comply with these requirements, any other Owner shall have the option of discharging or bonding any such lien, and if such option is exercised, the Owner which has the obligation under this Section to cause the discharge of the lien shall reimburse the Owner who discharged or bonded the lien for all costs, expenses, and other sums of money(including reasonable attorneys' fees) incurred in connection with the lien promptly upon demand, and the Owner which discharged or bonded the lien shall have all rights with respect to the amounts owed to it, including but not limited to its rights under Article XH of this Declaration. ARTICLE III SIGNS 3.01 Signs. No exterior identification signs shall be allowed within the Project except as permitted by (i) the City and any applicable City ordinances or Project specific requirements, and/or (ii) at the discretion or judgment of the Declarant or the Project Architect. ARTICLE IV EASEMENTS 4.01 Ingress, Egress and Parkins?. (a) Declarant reserves for itself and grants to each Owner, for the benefit of each Parcel (the Benefitted Parcel) and its Occupants, a nonexclusive easement on, over and through the Parking Area(the Burdened Parcel) for 11 Pa 2247808 11l09l2006 02.59P Shelley Vance-Gallatin Cc MT MISC 349,00 (i)vehicular access, ingress and egress by Permittees from public streets at the location of the curb cuts shown on the Site Plan,passage of Permittees'vehicles over established circulation elements, and parking of Permittees'vehicles within designated parking stalls, and (ii)pedestrian access, ingress, egress, and passage by Permittees. Each future Owner,by taking title to its Parcel subject to this Declaration, shall be deemed to have granted such easement with respect to the Parking Area on its Parcel to all other Owners and their Occupants. Such easement rights shall exist only during the term of this Declaration and shall be subject to the following reservations as well as other provisions contained in this Declaration: (b)Except for situations specifically provided for in the following subparagraphs, no fence or other barrier which would unreasonably prevent or obstruct the passage of pedestrian or vehicular travel for the purposes permitted by this Declaration shall be erected or permitted within or across the easement areas;provided,however,that the foregoing provisions shall not prohibit the installation of (i) convenience facilities (such as mailboxes,public telephones, benches, or public transportation shelters); (ii)photo kiosks, flower stands, or other retail uses which occupy less than two hundred(200) square feet each, and in the aggregate not more than six hundred(600) square feet, so long as the retail use is approved by Declarant in its sole and absolute discretion and is permitted by the City and is not prohibited by the Owner of the Parcel on which the retail use is erected or permitted or any lease between the Owner of that Parcel and a tenant of the Owner; (iii) landscaping,beams or planters; (iv)limited curbing and other forms of traffic controls; or (v) Outside Sales Areas permitted by Declarant pursuant to Section 6.03. (c)In connection with any construction, reconstruction,repair or maintenance on its Parcel, each Owner reserves the right to create a temporary staging and/or storage area in the Parking Area on or adjacent to its Parcel at a location which will not unreasonably interfere with access between its Parcel, the other areas of the Project, and the public streets or roadways adjacent to the Project. (d)Declarant reserves the right to close off a portion of the Common Area for such minimal,reasonable period of time as may be legally necessary, in the opinion of its counsel,to 12 111111111111111111111111111111IIIIIIIII IIIIII III IIII 2780 Page:109/2006f 59 02? R Shelley Vance-Gallatin Co M7 MISC 349.00 prevent the acquisition of prescriptive rights by anyone; provided, however,that Declarant shall exercise reasonable efforts to coordinate the closing with each affected Owner to minimize any interference in the passage of pedestrians or vehicles. (e)Declarant reserves the right at any time and from time to time to exclude and restrain, or allow others to exclude or restrain, any Person who is not a Permittee from using the Common Area to the extent that such action can be lawfully taken. Specific areas within the Common Area to be used for motor vehicle parking purposes by employees of occupants of the Project may be designated from time to time by Declarant. In the event employee parking areas are designated as provided herein, employees of the Owners and Occupants of the Project shall use only those portions of the Common Area designated for such employee motor vehicle parking purposes. The authority herein granted shall be exercised in such manner as not to discriminate against any Owner or commercial establishment in the Project. 4.02 Utilities. (a)Declarant reserves for itself and grants to each Owner for the benefit of each Parcel (the Benefitted Parcel)and its Occupants a nonexclusive easement in, to, over, under,along, and across those portions of the Common Area(the Burdened Parcel) necessary for the installation, use, maintenance, relocation, and removal of utility lines or systems, including but not limited to sanitary sewers, storm drains,water(fire and domestic), gas, electrical, telephone, and communication lines. Each Owner,by taking title to its Parcel subject to this Declaration, shall be deemed to have granted such easement with respect to the Common Area on its Parcel to all other Owners and their Occupants, if any. This easement shall continue for the term of this Declaration and for so long afterwards as the easement is utilized for the above-described purposes. Except with respect to ground mounted electrical transformers at the rear of a Building or as may be necessary during periods of construction, repair, or temporary service, all utilities shall be underground, unless required to be above ground by the utility providing the service, and to the extent practical shall be located along the perimeter of the Parcel and shall otherwise be located as to not unreasonably interfere with the use and enjoyment of the Parcel by the Owners or their Occupants. Prior to utilizing the easement and exercising the rights granted in this Section, the Grantee shall first provide the Grantor and Declarant with a written statement describing the need for such easement and shall identify the proposed location of the utility line. Any Owner installing utilities pursuant to the provisions of this subparagraph shall pay all costs and expenses with respect to installing the utilities, and shall cause all work in connection with the installation(including general clean-up and proper surface and/or subsurface restoration) to be completed as quickly as possible and in a manner so as to minimize interference with the use of the Common Area. The Grantee benefitting from a utility easement across another Owner's Parcel shall indemnify and hold harmless the Grantor from and against all demands,damage, claims, loss, liability, or expense in connection with the use, installation, maintenance and removal of the utility line. If any Owner elects to install common utilities, all costs and expenses of the common utilities may be set forth in a separate agreement between those cooperating Owners. 13 1111111111111I11111111111111111111111111111111 I11 1111 2247 08P Shelley Vance-Gallatin Co M7 MISC 349.00 (b) The initial location and width of any utility shall be subject to the prior written approval of the Grantor,which approval will not be unreasonably withheld. The easement area shall be no larger than whatever is necessary to reasonably satisfy the utility company for a public utility, or five feet(5')on each side of the centerline as to a private line. Upon request,the Grantee shall provide the Grantor with a copy of an as-built survey showing the location of the utility. The Grantor shall have the right at any time to relocate a utility line upon thirty(30)days' prior written notice to the Grantee,provided that the relocation- (i) shall not interfere with or diminish the utility services to the Grantee; (ii) shall not reduce or unreasonably impair the usefulness or function of the utility; (iii) shall be performed without cost or expense to the Grantee; (iv) shall be completed using materials and design standards which equal or exceed those originally used; (v) shall have been approved by the utility company and the appropriate governmental or quasi-governmental agencies having jurisdiction over the utility; and (vi) shall not unreasonably interfere with the Occupant's use of the Grantee's Parcel. Documentation of the relocated easement area shall be prepared at the Grantor's expense and shall be accomplished as soon as possible. The Grantee shall have the right to require an as-built survey of the relocated utility to be delivered to it at the Grantor's expense. (c) The Owners shall each, to the extent necessary and to the extent the same shall not result in the loss of compensation otherwise obtainable from condemnation,join in the execution of such instruments as may be required in order to effectuate the installation(subject to the restrictions contained in this Declaration) for the sole benefit of the Project or the Owners' Parcels of public utilities and similar easements under and across portions of their respective Parcels. 4.03 Constructions Maintenance, and Reconstruction. (a) In order to accommodate any footings, foundations, columns, or walls which may be constructed or reconstructed immediately adjacent to a common boundary line and which may overlap that common boundary line, each Owner shall grant and, by taking title to its Parcel subject to this Declaration shall be deemed to have granted, to each adjacent Owner a nonexclusive easement in, to, over, under, and across that portion of its Parcel adjacent to the common boundary line in space not there-to-fore occupied by any then existing structure for the 14 2247808 5of47IIIIIIIIIIIIIIIIIIIIIIIIIIIII�IIIIIIIIIIIIIIIIII Shelley Vance-Gallatin Co MT MISC 349.00 construction, maintenance, and replacement of subterranean footings to a maximum distance of five feet(5') onto the Grantor's Parcel and for the construction,replacement and maintenance of foundations, columns, or walls to a maximum distance of six inches (6") onto the Grantor's Parcel. The grant of easement shall include the reasonable right of access necessary to exercise and enjoy the grant. The easement shall continue in effect for the term of this Declaration and thereafter so long as the building utilizing the easement area exists (including a reasonable period to permit reconstruction or replacement of the building if it is destroyed, damaged,or demolished) and shall include the reasonable right of access necessary to exercise and enjoy the grant. (b)Prior to utilizing the easement right set forth in subparagraph (a) above,the Grantee shall advise the grantor Owner of its intention to use the easement, shall provide plans and specifications and proposed construction techniques for the improvements to be located within the easement area, and shall give the Grantor an opportunity to commence any construction activities which that Owner contemplates undertaking at approximately the same time to the end that each Owner involved shall be able to utilize subterranean construction techniques which will permit the placement above ground of a building on each Parcel immediately adjacent to the common boundary line. If a common subterranean construction element is used by the Owners, it is specifically understood that each shall assume and pay its reasonable share of the cost and expense of the initial construction, and so long as both Owners are benefitting from the common element, subsequent maintenance of the common element. If any Building utilizing a common subterranean element is destroyed and not replaced or is removed, the common subterranean construction element shall be left in place for the benefit of any Building utilizing the same element located on the adjoining Parcel. 4.04 Surface Drainage Easement. Declarant reserves for itself and grants to each existing and future Owner for the benefit of each Parcel (the Benefitted Parcel)a nonexclusive easement for surface drainage over the Common Area(the Burdened Parcel) through the drainage patterns and systems as are established from time to time within the Common Area of the Project. To the extent an Owner's Parcel includes Common Area,nothing in this Declaration shall prevent an Owner from relocating the drainage patterns and systems established upon that Owner's Parcel, provided the Owner first provides Declarant with plans respecting the relocation and the relocation does not unreasonably interfere with the drainage of other Parcels within the Project nor interfere with the orderly discharge of water by means of the drainage patterns and systems. By taking title subject to this Declaration, each Owner shall be deemed to have joined in this grant of easement. 4.05 Restriction on Grant of Easements. No Owner shall grant any easements over any land within the Project for the benefit of any land outside the Project;provided, however, that this Section shall not prohibit the granting or dedicating of utility easements by an Owner on its Parcel to governmental or quasi-governmental authorities or to public utilities. 15 I IIIIII IIIII IIIII 11H 11111111111111111111111111111122478 47 8 11�/09 15/2006 f 02:59P Shelley Vance-Gallatin Cc MT MISC 349.00 4.06 Term and Limitation of Easements, Covenants and Conditions. The easements referred to in Sections 4.01,4.02,4.03, 4.04 and 4.05 shall continue in favor of the respective Grantees for the term of this Declaration and for so long afterwards as each of the Grantees shall continuously utilize the easements. 4.07 Benefit and Burden to Run with the Land. The easements granted by this Article IV and all other covenants,conditions, and restrictions contained in this Declaration shall be deemed and construed to be covenants running with the land,which are for the benefit of the Benefitted Parcel of the Grantee, which Parcel shall be the dominant estate, and which burden the Parcel on which such easement is located or as to which such covenant is appurtenant, which shall be the servient estate. ARTICLE V PROJECT DEVELOPMENT RESTRICTIONS 5.01 General Restrictions. (a)No improvements may be built or maintained in the Common Area of the Project other than(i)parking spaces, driveways,walking and bike paths,walkways, sidewalks, curbs, loading docks and ramps, service areas, trash receptacles, lights, signs, ponds, streams,bridges, landscaping, and convenience facilities (such as mailboxes,public telephones, benches or public transportation shelters),and improvements normally found in parking areas of commercial developments, and(ii)photo kiosks, flower stands, or other retail improvements which occupy less than two hundred (200) square feet each, and in the aggregate not more than six hundred (600) square feet(provided, however, such kiosk, stand or other retail improvement is approved by Declarant in its sole and absolute discretion and is permitted by the City and is not prohibited by the Owner of the subject Parcel nor by any lease between the Owner of the subject Parcel and a tenant of such Owner). (b)As to the areas designated on the Site Plan as 'Building Area," the Owner of those Building Areas shall be permitted to construct on those Building Areas, or cause to be constructed on those Building Areas, such buildings or structures, in the locations and with the heights, exterior configurations, and designs as Declarant shall approve, so long as such improvements (i)do not violate City imposed parking requirements for the Project, (ii) are built in accordance with all set-back,zoning and other ordinances of the City, and (iii) do not exceed the maximum square footages as designated on the Site Plan and/or set forth in this Declaration (see Section 2.03) and the Development Manual. 16 11111111111111111111111111111111111111111111111111111 Page 22478087of 47 Shelley Vance-Gallatin Cc MT MISC 349.00 (c)Notwithstanding anything to the contrary contained in this Declaration,each Owner and Occupant,by taking title subject to this Declaration,hereby approves of the processing and recording by Declarant of, and agrees to execute and acknowledge, an amendment to the Parcel Map("Amended Parcel Map")to reflect any changes or modifications to the Parcel Map which do not materially and adversely affect the use or development of the Parcel(s) of the Owner or directly or indirectly impose on the Owner or Occupants any greater obligations than those previously agreed to by the Owner or Occupants. Each Owner agrees to execute and acknowledge an amendment to this Declaration, and each Occupant agrees to execute and acknowledge a subordination to this Declaration, as so amended,provided that the amendment reflects only the changes required for this Declaration to be consistent with the Amended Parcel Map. (d) The Site Plan sets forth Declarant's present intentions with regard to the location, configuration and massing of improvements on the Entire Property. Declarant and/or the assignee shall have the absolute right to make or approve such revisions or modifications to the Site Plan as it may deem necessary or desirable from time to time, subject to all of the provisions of this Declaration and the requirements of all applicable governmental laws, ordinances,rules and regulations including, without limitation, local zoning ordinances and building codes. Such revisions and modifications may include, without limitation, the addition or relocation of Project Roads. Except to the extent Declarant has agreed to greater restrictions in any lease with an Occupant or in any written agreement with another Owner, Declarant may make changes in the Site Plan provided that (i) access to then-existing Buildings is not impaired by the changes, (ii)the principal means of ingress and egress to the Project is not materially altered, and (iii) Declarant complies with all applicable City parking requirements and in all events, complies with Section 5.02(a)below. (e) At such time as Declarant requests, each Owner shall execute an amendment to this Declaration to replace the Site Plan with an "as-built" Site Plan ("Amended Site Plan")to reflect the location and/or relocation of any of the Buildings,the reconfiguration of the Common Area or any of the Parcels, and the improvements constructed on the Parcels. Except to the extent that an Occupant's lease conditions or limits its willingness to subordinate its lease to an Amended Site Plan, at such time as Declarant requests, each Occupant shall execute a subordination to an Amended Site Plan. 5.02 Parking Standards. (a) Declarant agrees that the Parking Areas will always contain at least that number of parking spaces for automobiles, and driveways and footways incidental to the parking spaces, as 17 11111111111111111111111111111111111111111111111111224?of 47 $p Shelley Vance-Gallatin Cc MT M1SC 349.00 is necessary to comply with all City requirements, and that the Parking Areas will contain at least that number of parking spaces within the Project as is necessary to comply with all City requirements. (b)All persons shall use the available Parking Area in accordance with the applicable requirements of this Declaration and all reasonable rules and regulations which Declarant shall adopt from time to time. (c) No person shall have an exclusive right to use any portion of the Parking Area unless Declarant has approved of such exclusive use in its sole discretion. Unless required by law or approved by Declarant and the Owners of the Parcels affected thereby, no charge of any type shall be collected from any Permittees for parking, or the right to park vehicles in any portion of the Parking Area, except reimbursement of Common Area Maintenance Costs as may be provided in this Declaration or in any agreement with any Occupant. (d)Each Owner shall cause the employees of all Occupants of its Parcel to park their automobiles in the applicable employee parking areas designated by Declarant. 5.03 Obstructions. Except as specifically depicted on the Site Plan or as may be approved in writing by the Declarant, no fence, division, partition, rail, or obstruction of any type or kind shall ever be placed,kept,permitted, or maintained between the Parcels or between any subsequent division of the Parcels or upon or along any of the common property lines of any portion thereof except within the confines of the Building Area, and except as may be required at any time and from time to time in connection with the construction,maintenance, and repair of the Common Area or construction within a Building Area(see Section 2.03(f) and(h)). 5.04 Grading. Any regrading of a Parcel shall require the prior written approval of Declarant, which approval shall not be unreasonably withheld or delayed. ARTICLE VI USE RESTRICTIONS 6.01 Use in General. The types of uses permitted in the Project shall be of a mixed use, commercial and/or retail nature found in first class developments of similar size and type in similarly situated metropolitan areas. Such uses may include, supermarkets, drug stores, hardware stores, apparel stores, other general mercantile businesses, financial institutions, brokerage offices,real estate services, travel agencies, insurance agencies, movie theaters, restaurants, general office,medical, dental, and gaming as well as a hotel operation. 6.02 Generally Prohibited Uses. No use or operation will be made, conducted or permitted on or with respect to all or any part of the Project,which use or operation is obnoxious to, or out of harmony with, the development or operation of a first-class shopping center, and/or lifestyle center, and/or office complex and/or hotel, including but not limited to, the following: 18 11111111111 IIIII IlliilliiiIIIIIIlillllIIIIIIIIIliiilll � 'o47$P Shelley Vance-Gallatin Cc MT M1SC 349,00 (a)Any public or private nuisance. (b)Any noise or sound that is objectionable due to intermittence, beat, frequency, shrillness, or loudness. (c) Any smell that is offensive or objectionable due to its nature or intensity. (d)Any excessive quantity of dust, dirt, or fly ash; provided however, this prohibition shall not preclude the sale of soils, fertilizers, or other garden materials or building materials in containers if incident to the operation of a home improvement or other similar store. (e)Any fire, explosion, or other damaging or dangerous hazard, including the storage, display, or sale of explosives or fireworks. (f)Any assembly,manufacture, distillation,refining, smelting,agriculture, or mining operations. (g)Any mobile home or trailer court,junkyard, stock yard, or animal raising. Notwithstanding the foregoing,pet shops shall be permitted within the Project. (h)Any drilling for and/or removal of subsurface substances. (i) Any dumping of garbage or refuse, other than in enclosed, covered receptacles intended for that purpose. 0)Any automobile body and fender repair work, except within those Parcels to be designed specifically for such use and referred to in an amendment to these covenants. (k)Any flea market or swap meet, "second hand"or"surplus" store (excluding national or regional operators such as "Goodwill"). (1) Any store in which a substantial portion of the inventory consists of pornography, sexual products, and similar"adult" goods,publications,movies, or videos. Declarant reserves the right to modify, amend,delete from or add to any of the foregoing list of restricted or prohibited uses and operations from time to time, and such modification, amendment, deletion or addition shall be effective as if set forth above. Declarant further reserves the right to grant exclusive or restricted uses of the Entire Property or any portions thereof from time to time for the benefit of any one or more Owners or Occupants,and each Owner and Occupant of an affected portion of the Entire Property shall thereafter hold and occupy its Parcel subject to such exclusive or restrictive use. 19 paqe 22478080of47 II� Shelley Vance-Gallatin Co MT MISC 349.00 6.03 Noninterference With Common Area. The Common Area is intended for the nonexclusive use by the Occupants and Permittees of the Project. Except for any Outside Sales Area approved by Declarant in writing and any kiosk,stand or other retail improvements permitted by Section 5.01 (a), in order to provide for the orderly development and operation of the Project, no Occupant shall be entitled to the use of any Outside Sales Area, and no Occupant shall display, store, or sell any merchandise or place portable signs or other objects outside the defined exterior walls,roof, and permanent doorways of its Building. Declarant's approval of an Occupant's use of Outside Sales Area may be conditioned upon such Occupant's assumption of Common Area Maintenance Costs or maintenance duties related to that use. 6.04 Rules and Regulations. In the operation of the Common Area, Declarant from time to time may adopt reasonable Rules and Regulations pertaining to the use of the Common Area by the Permittees of the Project and employee parking; provided that all such Rules and Regulations and other matters affecting the users of the Common Area(a)will apply equally and without discrimination to all Permittees, (b)comply with City ordinances, and(c) are otherwise consistent with this Declaration. The adoption of such Rules and Regulations any amendment of such Rules and Regulations shall not be deemed to be, nor shall it require, an amendment to this Declaration. 6.05 Deliveries and Exterior Maintenance Work.No deliveries of merchandise or other supplies shall be made, and no maintenance work or repair(except in the event of an emergency) on the exterior of any Building shall be performed between the hours of 10:00 p.m. and 7:00 a.m. each day. 6.06 Additional Use Restrictions and Requirements. In connection with Declarant's transfer or conveyance of a Parcel, Declarant reserves the right to impose such additional restrictions on operation or use requirements on the transferred Parcel or the Parcels Declarant continues to own, which restrictions are consistent and not in conflict with Declarant's then- existing agreements, as may be agreed to by Declarant and the subject Owner. ARTICLE VII MAINTENANCE AND REPAIR 7.01 Utilities. (a) Declarant shall replace,repair and maintain, or cause to be replaced,repaired and maintained, in a first-class condition all common utility lines and systems located on the Common Area,unless the same are dedicated to and accepted by a public or quasi-public utility or authority or are maintained by a utility company. Such costs of replacement, repair and maintenance,to the extent such costs are not covered by insurance proceeds, are to be included in Common Area Maintenance Costs, as discussed in Section 7.03. 20 11111111 II 1 � p Shelley Vance-Gallatin Co MT MISC 349.00 (b)Each Owner shall replace, repair,and maintain in first-class condition all utility facilities,lines, and systems located on its Parcel that serve only its Parcel unless the same are dedicated to and accepted by a public or quasi-public utility or authority or are maintained by a utility company. (c)Any Owner who is the Grantee of a utility easement referred to in Section 4.02 (exclusive of an easement in which common utility lines and systems are located,which shall be maintained as part of the Common Area), shall maintain and repair at its cost any facilities installed pursuant to that easement which exclusively serve the Grantee's Parcel unless the facilities are granted or dedicated to and accepted by a utility or a governmental agency acceptable to the Grantor which agrees to maintain and replace the facilities. Any maintenance and repair of non-dedicated utilities located on the Grantor's Parcel shall be performed only after two(2) weeks' notice to the Grantor(except in an emergency the work may be initiated with reasonable notice) and shall be done after normal business hours whenever possible and shall otherwise be performed in such a manner as to cause as little disturbance in the use of the Grantor's Parcel as is practicable under the circumstances. Any Grantee performing or causing to be performed such maintenance or repair shall pay all expenses associated with the maintenance and repair,will diligently complete such work as quickly as possible,and will promptly clean the area and restore the affected portion of the Common Area to a condition equal to or better than the condition which existed prior to the commencement of the work. 7.02 Common Area Maintenance Obligation. (a)From and after the date upon which the Common Area or a functional portion of the Common Area of the Project is substantially completed, Declarant shall maintain the Common Area or cause it to be maintained, in good order, condition, and repair. Declarant shall have the right, from time to time, to select another person or persons to maintain the Common Area(or portions thereof)and delegate Declarant's obligations with respect to the Common Area(or portions thereof) to such person(s). Declarant may hire companies affiliated with it to perform the maintenance and operation of the Common Area,but only if the rates charged by such companies are competitive with those of other companies furnishing similar services in the Bozeman, Montana area. In addition to the foregoing, and notwithstanding anything to the contrary contained herein, Declarant shall have the right, from time to time, to segregate the Common Area maintenance obligations hereunder(and associated Common Area Maintenance Costs) into one or more Phases, and in connection therewith to assign and transfer its obligations with respect to such Common Area to one or more of the Owners within such Phase(s). In.such event, such Owner or Owners shall maintain the Common Area within such Phase(s), or cause it to be maintained, in accordance with the standards and requirements set forth herein, and the Common Area Maintenance Costs incurred by such Owner(s)shall be allocated among and paid by the Owners within such Phase(s) in the manner provided in this Declaration. In such event, such Owners' share of Common Area Maintenance Costs to be paid to Declarant as provided below shall be their share of those Common Area Maintenance Costs that generally benefit the Project (or multiple Phases within the Project including such Owner's Phase); including, insurance 21 11111111111111111111111111111111 111111IIII1111111111111 ? '�47 8 111091 2006 02.59P Shelley Vance-Gallatin Cc MT MISC 349.00 premiums (unless specifically approved otherwise by Declarant in writing), maintenance, replacement and operation of Project Roads, common utility lines, Open Space and Open Space landscaping,walking and bike trails, bridges, ponds and streams; but specifically excluding, maintenance, replacement and operation of Parking Areas, landscaped areas outside of Open Space, dock, service and loading areas and sidewalks adjacent to buildings. Notwithstanding the foregoing or anything to the contrary contained herein, the Common Area of Phase 5 shall be maintained and operated separately from the balance of the Project and the Common Area Maintenance Costs associated with such maintenance shall be accounted for and billed separately from the Common Area Maintenance Costs for the balance of the Project. The Owner(s)of the Parcels within Phase 5 shall have no obligation to pay for any portion of Common Area Maintenance Costs applicable to any other Phase in the Project. Similarly, the Owner(s) of Parcels within the other Phases of the Project(i.e., all Phases, excluding Phase 5) shall have no obligation to pay for any portion of Common Area Maintenance Costs applicable to Phase 5. (b)The minimum standard of maintenance for the Common Area Improvements shall be comparable to the standard of maintenance followed in other first-class commercial and/or retail developments of comparable size in the Bozeman, Montana area and in any event in compliance with all applicable governmental laws,rules,regulations,orders, and ordinances, City and County Noxious Weed Management Plan, and the provisions of this Declaration. All Common Area Improvements shall be repaired or replaced with materials at least equal to the quality of the materials being repaired or replaced so as to maintain the architectural and aesthetic harmony and integration of the Project as a whole. In any event, the maintenance and repair obligation shall include but not be limited to the following: (i)Drive and Parking Areas. Maintaining all paved surfaces and curbs in a smooth and evenly covered condition, which maintenance work shall include, without limitation, cleaning, sweeping, snow removal,re-striping, repairing,resealing, and resurfacing. (For the purposes of this Section, an overlay of the Parking Area shall be considered a repair or maintenance item.) Dedicated streets within the Project shall be maintained by Declarant as part of the Common Area until such time as the maintenance thereof is turned over to and accepted by the City under terms and conditions approved by the City and Declarant. (ii) Debris and Refuse. Periodic removal of all papers, debris, filth, refuse, ice and snow, including sweeping to the extent necessary to keep the Common Area in a first- class, clean, and orderly condition. All sweeping shall be at appropriate intervals during such times as shall not interfere with the conduct of business or use of the Common Area by persons intending to conduct business with Occupants of the Project. (iii) Signs and Markers. Placing, cleaning,keeping in repair, replacing,and repainting any appropriate directional signs or markers, including any handicapped 22 I flllll IIH III IIIIII III III IIIIIII III111111111111 � 47$47 P Shelley Vance-Gallatin Co MT MISC 349.00 parking signs, and any Project identification signage (excluding,however, any Occupant signage). (iv) Lighting. Operating(except after-hours lighting requirements -see Section 7.06), keeping in repair, cleaning, and replacing when necessary such Common Area lighting facilities as may be reasonably required, including all lighting necessary or appropriate for Common Area security. (v) Landscaped Areas. Cleaning and maintaining(including any requirement as may be imposed by the City to maintain landscape or to remove debris) all landscaped areas, landscaping,and planters adjacent to exterior walls of buildings,repairing automatic sprinkler systems or water lines in the Common Area, irrigating, weeding, pruning, fertilizing, and replacing shrubs and other landscaping as necessary; provided, however, that if any Owner requires or installs "special" landscaping(i.e. beyond the standard landscaping requirements for the remainder of the Project) the maintenance and cost of such special landscaping shall be borne solely by such Owner without cost or expense to the other Owners and shall not be included in Common Area Maintenance Costs. (vi)Utilities. To the extent the same have not been dedicated to the public or any public or private utility, maintaining, cleaning, and repairing any and all common storm drains, utility lines, sewers, and other utility systems and services located in the Common Area which are necessary for the operation of the Common Area, and the maintenance and replacement of the trunk line portion of utility lines serving the Building Areas. (vii)Obstructions. Keeping the Common Area free from any obstructions including those caused by the sale or display of merchandise not otherwise permitted by this Declaration, unless the obstruction is permitted under the provisions of this Declaration. (viii) Sidewalks. Cleaning(including washing and/or steam cleaning), maintenance, and repair of all sidewalks, including those adjacent and contiguous to Buildings located within the Project. Sidewalks shall be cleaned at appropriate intervals during such time as shall not interfere with the conduct of business or use of the Common Area.Notwithstanding the foregoing, any Occupant which is permitted by Declarant or by the terms of this Declaration to use any portion of the Common Area or the sidewalk areas adjacent to its Building for staging, storage, sales,promotional, marketing, customer service, or seating purposes shall keep that area in a neat and clean condition free of refuse and shall be responsible for any increase in Declarants cost of maintaining the Common Area as a result of such activities. (ix) Security Personnel. Providing professional security personnel for the Common Area, if reasonably required. 23 �z4��47 0s11111111111111111111111111111111111111111111111111111111 1 1/08!2006 0 2.59P Shelley Vance-Gallatin Cc MT MISC 349.00 (x) Traffic. Supervision of traffic at entrances and exits to the Project and within the Project as conditions reasonably require in order to maintain an orderly and proper traffic flow. Notwithstanding anything to the contrary, each Owner shall maintain and repair, at its sole cost, in a clean, sightly and safe condition all of the following relating to its Parcel: any exterior shipping/receiving dock area, any"drive-thrus"approved by Declarant as herein provided, any truck ramp or truck parking area, any refuse,compactor or dumpster area,and any separate utility lines or any lateral utility lines extending to and from common trunk lines. 7.03 Common Area Maintenance Costs. Common Area Maintenance Costs shall include, without limitation, all expenditures, costs,premiums, and expenses for the following: (a) casualty and public liability insurance for the Common Area and improvements located on the Common Area, in the amounts and types set forth in Article X below, and payment of any deductible amount in the event of a claim; (b)repairs for any damage to the Common Area including,without limitation,the common utility lines and systems,to the extent that those costs are not covered by insurance proceeds; (c) all general maintenance and repairs with respect to the Common Area,whether required by the enactment or operation of law, or otherwise, including, without limitation, painting,re-striping, resurfacing, cleaning, sweeping, snow removal, and janitorial services; (d)maintenance,repair, and replacement as required, of the Common Area including, without limitation, the common utility lines and systems, and Parking Areas;provided, however, that if Declarant establishes reserves in anticipation of the replacement of Common Area Improvements, the aggregate amount of the reserves with respect to that particular replacement item shall be applied by Declarant against the cost of replacing that item, at the time the item is replaced; (e) operation, maintenance and repair of the Project identification monument signs and pylon signs (if any); provided, however, if a monument or pylon sign also identifies specific Occupants, the portion of the operation and maintenance costs proportional to those Occupants' share of the sign area shall be paid by those Occupants and shall not be a Common Area Maintenance Cost; (f)maintenance and repair of light standards, all plantings, sprinkler systems,ponds, streams, bridges, walking and bike paths, landscaping, directional signs and other markers,and parking bumpers; 24 11111111111111111111111111111 224'�� Illllllllil Page: 25 of 2: llllllllllll 11l09/2006 02.59p Shelley Vance-Gallatin Cc M7 MISC 349.00 (g)providing common rubbish receptacles (including gates and enclosures) and removal service only for Permittees of the Project; (h) storage space for Common Area maintenance equipment and supplies; (i) expenses for personnel to implement such services including, if Declarant in its sole judgment deems them reasonably necessary, the cost of security guards; 0) operation, maintenance, repair, and/or installation of any fire protection systems, security alarm systems, lighting systems, storm drainage systems, electrical systems, and any other utility systems serving the Common Area; (k)payroll, payroll taxes, health, and workers'compensation insurance applicable to employees providing the aforementioned services rendered in connection with the Common Area; (1) all real estate taxes and assessments levied or assessed against the Common Area or the Common Area Improvements; (m) any public utility or governmental charges, surcharges, and any other costs levied, assessed, or imposed pursuant to assessment districts, laws, statutes, regulations, codes, and ordinances promulgated under or created by any governmental or quasi-governmental authority in connection with the development of the Project or the use of the Common Area; (n)necessary tools and supplies; (o) depreciation on maintenance and operating machinery and equipment(if owned)and rental paid for such machinery and equipment(if rented);provided, however, that if Declarant depreciates any particular machine or piece of equipment or establishes reserves in anticipation of the replacement of that machine or piece of equipment,the aggregate amount of the depreciation and reserves with respect to that particular machine or piece of equipment shall be applied by Declarant against the cost of replacing that machine and/or piece of equipment, at the time the machine or piece of equipment is replaced; (p)other costs and fees necessary or beneficial, in Declarant's sole judgment, for the maintenance and operation of the Common Area, including the cost of enforcing the terms of this Declaration applicable to the Common Area; and (q)an allowance or fee for supervision of the Common Area in an amount equal to 15% of the total of all Common Area Maintenance Costs exclusive of this supervision allowance or fee. 25 1111111111111111111111111111111111111111111111111111111 2247808 Page: 28 cf 47 11l0912006 02.59P Shelley Vance-Gallatin Co MT MISC 349.00 Declarant shall have the right to establish appropriate reserves for the payment of certain Common Area Maintenance Costs {ems, repaving,restriping, replacing lighting and lighting facilities, equipment replacement,etc.) as it deems appropriate and the funding of such reserves shall be included in Common Area Maintenance Costs. To the extent feasible, as determined by Declarant in Declarant's sole discretion, from an accounting and operational perspective, as determined by Declarant in Declarant's sole discretion, Declarant shall attempt to separately account for Common Area Maintenance Costs on a Phase-by-Phase basis. 7.04 Payment of Common Area Maintenance Costs. Common Area Maintenance Costs shall not include any costs of the initial construction of the Common Area Improvements. After the initial construction of the Common Area Improvements, the Common Area Maintenance Costs shall be paid to Declarant by each other Owner as follows: (a) Each other Owner shall pay to Declarant, on the first day of each calendar month, an amount reasonably estimated by Declarant to be one twelfth (1/12) of that Owner's share of the annual Common Area Maintenance Costs (which estimate, except for the first calendar year, shall be based on the prior year's expenses and reasonably anticipated changes in cost). An Owner's share of Common Area Maintenance Costs during any applicable monthly,quarterly or annual accounting period shall be the total Common Area Maintenance Costs incurred during that period multiplied by the quotient arrived at by dividing the number of square feet of Floor Area located on that Owner's Parcel by the total number of square feet of Floor Area which has been completed in the Project. This estimated monthly charge may be adjusted by Declarant at the end of any calendar quarter on the basis of Declarant's experience and reasonably anticipated costs. (b) Within a reasonable time following the end of each calendar year, Declarant shall furnish to each Owner a statement covering the calendar year just expired showing the total of the Common Area Maintenance Costs, the amount of each Owner's share of the Common Area Maintenance Costs for that calendar year, and the payments made by each Owner with respect to that calendar year as set forth in subparagraph(a) above. Owners shall have the right to audit any such statements in accordance with subparagraph(e)below. If an Owner's share of the Common Area Maintenance Costs exceeds that Owner's payments, the Owner shall pay to Declarant the deficiency within ten (10)days after receipt of the statement. If the payments exceed that Owner's share of the Common Area Maintenance Costs, the Owner shall be entitled to offset the excess against the next payments which become due to Declarant as set forth in subparagraph(a)above. (c) Payment of any Common Area Maintenance Costs owed to Declarant under this Declaration which is more than ten (10) days past due shall be subject to a late payment penalty of fifteen percent(15%). In addition, for as long as the amounts owed to Declarant remain unpaid, those unpaid amounts shall bear interest at the.Default Rate. Each Owner acknowledges that the late payment of any monthly installment will cause Declarant to incur certain costs and 26 11111111111111111111111111111111111111111111111111111 2247f 47 Page: 27 of 2:11l09l2 006 02.59P Shelley Vance-Gallatin Cc MT MISC 349.00 expenses not otherwise contemplated, the exact amount of which is extremely difficult and impractical to fix. Those costs and expenses will include,without limitation, administrative and collection costs,processing and accounting expenses,and other costs and expenses necessary and incidental to those costs and expenses. It is, therefore, agreed that this late charge represents a reasonable estimate of those costs and expenses and is fair compensation to Declarant for its loss suffered by the Owner's nonpayment. The late charge provisions contained in this Section are in addition to and do not diminish or represent a substitute for any or all of Declarant's other rights to enforce the provisions of this Declaration. (d) Within sixty(60) days after receipt of any Common Area Expense statement, any Owner may audit that statement. If it is determined as a result of an audit that the auditing Owner has paid in excess of the amount required pursuant to this Declaration, then the overpayment shall be credited toward the next installment that would otherwise be due from the Owner. In addition, if the Owner paid more than five percent (5%)over the amount that the Owner should have paid(as determined by the approved audit), then the Declarant shall pay all of the auditing Owner's reasonable costs and expenses connected with the audit. (e)Notwithstanding anything contained in this Declaration to the contrary and without in any way modifying or limiting an Owner's obligations under this Declaration, each Owner may enter into agreements with its Occupants pursuant to which the Occupants are obligated to reimburse the Owner for some or all Common Area Maintenance Costs allocable to the Parcel and/or other expenses related to the operation and maintenance of the Common Area on terms which are more or less favorable than the terms of this Declaration with respect to that Owner's payment of its share of Common Area Maintenance Costs. If the agreement is entered into on less favorable terms, subject to the immediately following sentence, the Owner will make up the shortfall. Likewise, in connection with the transfer or conveyance of a Parcel, Declarant may enter into an agreement with the respective Owner pursuant to which the Owner is obligated to reimburse Declarant for some or all Common Area Maintenance Costs allocable to the subject Parcel and/or other expenses related to the operation and maintenance of the Common Area on terms which are more or less favorable than the terms.of this Declaration with respect to that Owner's payment of its share of Common Area Maintenance Costs. If the agreement is entered into on less favorable terms,Declarant shall assume the shortfall. 7.05 Building Improvements. After completion of construction on its Parcel, each Owner or its Occupant shall,at its sole cost and expense,maintain and keep its Building and building improvements(including loading docks, service areas, "drive-thrus" and the like), if any, located on its Parcel in first-class, good, clean condition and state of repair, in compliance with all governmental laws, rules,regulations, orders, and ordinances exercising jurisdiction over them, and in compliance with the provisions of this Declaration. Each Owner or its Occupant shall store all trash and garbage in adequate containers,in areas designated or approved by Declarant, and will arrange for regular removal of the trash or garbage. If an Owner or its Occupant fails to comply with Section 7.05, then Declarant shall have the right to give the defaulting Owner written notice of the default, specifying the particulars of the default. If the 27 111111111111111111111111111111111 I111111111111111 ll 1111 22 .4'��$ 11 J09/2006 02.59P Shelley Vance-Gallatin Cc MT MISC 349.00 Owner which receives the notice fails to cure the default within thirty(30)days after its receipt of the notice,or if the nature of the default is such that it cannot be reasonably cured within a thirty (30) day period and the Owner does not commence to cure the default within the thirty(30) day period and thereafter diligently pursue the cure to completion, then Declarant may cure the default and then bill the defaulting Owner for the expense incurred. If the defaulting Owner does not pay the bill within fifteen(15) days, Declarant shall have all rights with respect to the bill as are provided for in Article XII. 7.06 After-Hours Lighting. If any Occupant's use of its Parcel requires Common Area lighting one half hour beyond the normal hours of the Project(as reasonably determined by Declarant),that Occupant shall be responsible for the cost of operating the Common Area lighting on its Parcel and any other Parcel which it elects to have lighted after the normal hours, and the expense shall not be a Common Area Maintenance Cost. ARTICLE VIII DAMAGE TO IMPROVEMENTS 8.01 Restoration of Common Area. If any of the Common Area Improvements are damaged or destroyed, whether insured or uninsured,Declarant shall restore, repair,or rebuild those Common Area Improvements with all due diligence as nearly as possible to at least as good a condition as they were in immediately prior to the damage or destruction. Any cost of the restoration, repair, or rebuilding which is not reimbursed by insurance shall be a Common Area Maintenance Cost. 8.02 Restoration of Buildin&s. If the Building(s)on an Owner's Parcel are damaged or destroyed, that Owner may,but shall not be obligated by this Declaration to, restore and reconstruct those Building(s)within the final configuration of the Building Areas within that Owner's Parcel. If an Owner elects to reconstruct the Building(s)on its Parcel, those Buildings shall be restored to a condition as good as immediately prior to the damage or destruction, and all restoration and reconstruction shall be performed in accordance with the following requirements, as those requirements are applicable to the restoration and reconstruction: (a)No restoration or reconstruction work shall be commenced unless the Owner desiring to perform the work has in each instance complied with the appropriate provisions of Article II with respect to plan approval. (b)All restoration and reconstruction work shall be performed in a good and workmanlike manner and shall conform to and comply with: (i) The plans and specifications approved pursuant to Article II; (ii)All applicable requirements of laws, codes,regulations and rules;and 28 111111111111111111111111111111111111111111111111111 � 9 of 47 2 59 Shelley Vance-Gallatin Co MT MISC 349.00 (iii)All applicable requirements of this Declaration. (c)All restoration and reconstruction work shall be completed with due diligence and at the sole cost and expense of the Owner performing the work. 8.03 Clearing of Premises. Whenever an Owner elects not to restore,repair or rebuild a Building that has been damaged or destroyed, that Owner, at its sole cost and expense, shall raze the Building, or the parts of the Building which has been damaged or destroyed, shall clear the premises of all debris, and all areas not restored to their original use shall, at the expense of the Owner, be leveled, cleared, and improved with, at the option of the Owner, either landscaping or parking area., of like standard and design as the Common Area of the Project. Although no transfer of ownership shall be deemed to have occurred as a result of the Owner's election not to restore its Building if the area is converted to landscaped area or Parking Area, the area shall be treated as Common Area and shall be maintained and insured by Declarant as Common Area; however, the Owner shall reimburse Declarant for the maintenance and insurance costs which are fairly allocated to the area and those costs shall not be Common Area Maintenance Costs. ARTICLE IX EMINENT DOMAIN 9.01 Eminent Domain. If any part of the Project, including the Common Area, shall be taken by eminent domain or any other similar authority of law, the entire award for value of the land and improvements so taken shall belong to the Owner whose property was so taken or its Occupants, as their interests may appear or as the Owner and Occupants have agreed to in the Occupant's lease, and the other Owner(s) shall not claim any portion of the award by virtue of any interests created by this Declaration. However, the other Owner(s)may file a claim with the condemning authority over and above the value of the property so taken to the extent of any damage suffered by those Owner(s)resulting from the severance of the area taken. The Owner whose property was condemned shall promptly repair and restore in accordance with this Declaration the remaining portion of its Parcel as nearly as practicable to the condition existing just prior to the condemnation without contribution from the other Owner(s). ARTICLE X TAXES AND INSURANCE 10.01 Realty Taxes and Assessments. In addition to each Owner's payment of its share of real estate taxes and assessments on the Common Area as provided in Article VII,each Owner shall pay, or cause to be paid by that Owner's Occupants when due, all real estate taxes and assessments which may be levied, assessed, or charged by any public authority against that Owner's Parcel, the improvements on that Parcel, or any other part of that Parcel. If an Owner shall deem any real estate tax or assessment (including the rate thereof or the assessed valuation of the property) to be excessive or illegal, that Owner shall have the right, at its own costs and expense, to contest the tax or assessment by appropriate proceedings, and nothing contained in 29 4 0f 47III1111111111111111 III 11111111 I11 IN 111111 II Shelley Vance-Gallatin Cc Mr MISC 349.00 this Section shall require the Owner to pay the real estate tax or assessment as long as (a)no other Owner's Parcel would be immediately affected by the failure to pay(or bond)the tax or assessment; and(b) the amount or validity of the tax or assessment shall be contested in good faith. If the failure to pay(or bond)the tax or assessment would affect another Owner's Parcel, that other Owner shall have the right to pay the tax and shall have a lien on the nonpaying Owner's Parcel for the amount so paid until reimbursed for the payment. The lien shall be subject to and junior to, and shall in no way impair or defeat the interest, lien, or charge of any Mortgagee or Occupant. 10.02 Indemnification. Declarant or any other person who operates and maintains the Common Area shall indemnify, defend, and save the other Owners harmless from and against any and all demands, liability, damage, expense, cause of action, suit, claims, and judgments, including reasonable attorneys'fees, arising from injury or death to person or damage to property that occurs as a result of that person's operation and maintenance of the Common Area except to the extent that the injury, death, or damage is caused by the indemnified Owner's negligence or willful act or omission. In addition, each Owner shall indemnify,defend, and save the other Owners harmless from and against any and all demands, liability, damages, expenses, causes of action, suits, claims, and judgments, including reasonable attorneys fees, arising from injury or death to person or damage to property that occurs as a result of the use or operation of the indemnifying Owner's Parcel, except to the extent that the injury, death or damage is caused by the indemnified Owner's negligence or willful act or omission; provided, however, indemnification under this sentence shall not be required where the claim or loss underlying an indemnitee's request for indemnity is (i)required to be indemnified against pursuant to the immediately preceding sentence, (ii) is insured against by the insurance required to be maintained by the Declarant covering the Common Area in accordance with Section 10.4, or(iii) is insured against by the insurance required to be maintained by the indemnitee with respect to the use and operation of the Buildings on the indemnitee's Parcel in accordance with Section 10.04. 10.03 Casualty_Insurance and Restoration. (a)Declarant, as respects the improvements on its Parcels and as respects all of the Common Area Improvements, will carry or cause to be carried, casualty insurance in an amount equal to 90%of the full replacement cost(exclusive of the cost of excavation, foundations and footings)of those buildings and improvements for the risks covered within the classification of "all-risk" coverage, excluding coverage against earthquake and flood unless the cost of the that coverage is, in Declarant's business judgment, economically reasonable. The insurance shall be carried with a financially responsible insurance company or companies. (b) Each other Owner, as respects the building improvements on its Parcel(excluding Common Area Improvements on its Parcel), will carry or cause to be carried "all-risk"casualty insurance, excluding coverage against earthquake and flood unless the cost of the same is,in the Owner's business judgment,reasonably exercised, economically reasonable. The insurance shall be in an amount equal to 90%of the full replacement cost(exclusive of the cost of excavation, 30 08 47 11111111111111111111111111111111111111111111111111111111Page: 31 1109/2006 02:59P Shelley Vance-Gallatin Cc MT MISC $49.00 foundations and footings of the Building). The insurance shall be carried with a financially responsible insurance company or companies. The insurance shall contain a provision that it may not be canceled,reduced or materially amended without at least thirty(30) days written notice being given by the insurer to the Declarant. To the extent Declarant is causing the insurance to be carried by an Occupant who has ground leased premises in the Project and who has developed its Building substantially at its own cost and expense, Declarant may agree to a reduced insurance obligation for that Occupant near the end of that Occupant's lease term. 10.04 Owners'Liability Insurance. Each Owner shall, severally, at all times during the term of this Declaration,maintain or cause to be maintained by its Occupant in full force and effect a comprehensive occurrence public liability insurance policy covering the use and operation of Buildings (and other structures, if applicable)on its Parcel(and, as to Declarant, covering the use and operation of all of the Common Area), with a financially responsible insurance company or companies, including coverage for any accident resulting in bodily injury to or death of any person and consequential damages arising therefrom, and comprehensive property damage insurance,each in an amount not less than $3,000,000 per occurrence or, as to an Occupant of a Declarant owned Parcel and as to an Owner other than Declarant, such lesser amount as may be agreed to by Declarant. Declarant's public liability policy with respect to the Common Area shall name each other Owner as an additional named insured and each public liability policy with respect to the use and operation of the Buildings on an Owner's Parcel shall name Declarant and each other Owner as an additional named insured. Declarant's public liability policy with respect to the Common Area and each Owner's public liability policy with respect to the Buildings on its Parcel shall also include a contractual liability endorsement in an amount not less than the amount of the above-described comprehensive public liability policy to insure their respective indemnities set forth in Section 10.02. Each Owner shall furnish to each other Owner which requests proof of insurance in writing, evidence that the insurance referred to in this Section is in full force and effect and that the premiums for the policy have been paid. The insurance shall provide that it may not be canceled,reduced below the required minimum or materially amended without at least thirty(30)days prior written notice being given by the insurer to Declarant. 10.05 Blanket Insurance. Any insurance required to be carried pursuant to this Article may be carried under a policy or policies covering other liabilities and locations of an Owner; provided,however, that the policy or polices must apply to the properties required to be insured by this Article in an amount not less than the amount of insurance required to be carried by the Owner with respect to the Parcel,pursuant to this Article. 10.06 Release and Waiver of Subrogation. Each Owner hereby releases and waives for itself, and to the extent legally possible for it to do so, on behalf of its insurer, each of the other Owners from any liability for any loss or damage to its property located upon the Project,which loss or damage is of the type covered by the "all-risk" casualty insurance described in this Article X, irrespective of any negligence on the part of the other Owner which may have contributed to or caused such loss. Each Owner covenants that it will, if generally available in the insurance 31 111111111111111IIIIIIIIIIIIIIIIIIIIIIIIIIIEIIII � 47o $P Shelley Vance-Gallatin Cc MT MISC 349.00 industry, obtain for the benefit of the other Owners an express waiver of any right of subrogation which the insurer of that Owner may acquire against the other Owner by virtue of the payment of any such loss covered by the insurance. If any Owner is by law, statute, or governmental regulation unable to obtain a waiver of the right of subrogation for the benefit of another Owner, then, during any period of time when a waiver of subrogation is unobtainable,the Owner shall be deemed not to have released any surrogated claim of its insurance carrier against the other Owner, and during the same period of time the other Owner shall be deemed not to have released the Owner who has been unable to obtain a waiver of subrogation from any claims they or their insurance carriers may assert which otherwise would have been released pursuant to this Section. ARTICLE XI ENVIRONMENTAL MATTERS 11.01 Duties of Owners. Except as provided in Section 11.03, neither Owners nor Occupants shall release, generate, treat, use, store, dump, transport, handle, or dispose of any Hazardous Material within the Parcels or otherwise permit the presence of any Hazardous Material on,under, or about the Parcels or transport any Hazardous Material to or from the Parcels. Any such use, handling or storage permitted under Section 11.03 shall be in accordance with all Environmental Laws and all other applicable laws, ordinances,rules, and regulations now or hereafter promulgated by any governmental authority having jurisdiction thereof. Neither Owners nor Occupants shall install, operate or maintain any above, below, or at grade tank, sump, pit, or other storage or treatment vessel or device on or about the Parcels with the exception of gasoline,diesel and/or oil underground storage tanks or other storage devices or containers utilized in connection with an automobile gasoline and/or service station provided that such use is permitted in the Project, and further provided that the operator of the service station has obtained Declarant's consent to the underground storage tanks or other storage devices or containers pursuant to the last paragraph of Section 11.03 of this Declaration. 11.02 Specific Construction Materials. No Owner or Occupant shall introduce, or permit any other Person to introduce, any friable asbestos,radioactive material, urea formaldehyde foam insulation, or devices containing polychlorinated biphenyls{PCBs} into any portion of the Project. 11.03 Permitted Use Storage, Hand!jflL and Disposal of Hazardous Materials. Notwithstanding anything contained in Section 11.01 to the contrary, incident to the normal operation of motor vehicles within the Parking Areas,the Owners and their Occupants and Permittees may utilize gasoline and petroleum products used to fuel and/or lubricate motor vehicles. In addition,notwithstanding anything contained in Section 11.01 to the contrary, the Owners or their Occupants may utilize cleaning products and sell and otherwise merchandise products, which may contain Hazardous Materials, so long as those products are commonly 32 �� ��I IIII �ll IIIIII IIII II II IIIIIII i t 2247808© 33o4I 11111111 ! P Shelley Vance-Gallatin Cc MT MISC 349.00 utilized for maintenance purposes or merchandised in other first-class shopping centers, and so long as those products are safely handled and stored in compliance with applicable laws. An Owner or its Occupants may also use other Hazardous Materials in connection with its use of its Parcel if the Owner has received Declarant's prior consent to the use. Declarant shall not unreasonably withhold or delay its consent provided(i) the Owner or Occupant demonstrates to Declarant's reasonable satisfaction that the Hazardous Materials (a)are necessary or useful to the Owner's or Occupant's business, (b)will be monitored,used, stored, handled, and disposed of in compliance with all Environmental Laws, (c) will not endanger any persons or property, (d) are consistent with and normally found in first-class retail establishments, and(e)will not invalidate or limit the coverage or increase the premiums of any insurance policy effecting or covering the Building, the Parcel, or the Project; (ii)such use is not prohibited by Article V1 of this Declaration; (iii)the Owner or Occupant provides Declarant with such security as may be reasonably required by Declarant; and(iv)the Owner or Occupant satisfies any other requirements Declarant may reasonably impose with respect to the Owner's or Occupant's use of the Hazardous Materials. ARTICLE XII LIENS 12.01 Assessment Lien. If any sum of money payable by any Owner pursuant to any provision of this Declaration to any other Owner is not paid when due, and after the defaulting Owner has been notified in writing of the default and the expiration of any applicable grace period set forth in this Declaration, or a reasonable period of time not to exceed thirty(30)days if there is no express grace period, the Person to whom the sums are owing shall have the right to record, in the office where documents are to be recorded, a notice of Assessment Lien("Notice of Assessment Lien")which shall set forth the then delinquent amount owed by the defaulting Owner pertaining to any Parcel(including, if applicable, interest at the Default Rate)and a legal description of the Parcel within the Project owned by that defaulting Owner. Upon recordation of a Notice of Assessment Lien, the then delinquent amount owed by the Owner together with interest on that amount, shall constitute an Assessment Lien upon the property within the Project described in the Notice of Assessment Lien which is owned or was previously owned by the defaulting Owner. If the amount secured by an Assessment Lien is not paid in full within ten(10) days after a Notice of Assessment Lien has been recorded, and the Owner has been provided with a copy of the recorded Notice of Assessment Lien, the Person to whom the amounts are owed may enforce payment of the assessment or other amount due, or enforce the Assessment Lien against the property of the delinquent Owner, by foreclosing the Assessment Lien against the delinquent Owners Parcel in accordance with the laws relating to the foreclosure of realty mortgages (including the right to recover any deficiency), either judicially or non-judicially under a power of sale, such power being hereby granted to Declarant as a mortgagee. 12.02 Assessments as Personal Obligations. Each amount due by an Owner pursuant to any provision of this Declaration, together with interest at the Default Rate, costs and attorneys' 33 1111111111111111111111111111111111111111111111111111 11111 227808 44of 47 Shelley Vance-Gallatin Cc MT 111SC 349.00 fees, shall be the personal obligation of the defaulting Owner, but the personal obligation of the Owner shall not be deemed to discharge or limit the lien on the land of any Assessment Lien encumbering the property of the Owner within the Project.No Owner shall avoid liability for payment of any amount due under this Declaration which fell due while that Person was the Owner by nonuse of the Common Area or by transfer or abandonment of the Owner's property. If any property within the Project as to which a Notice of Assessment Lien has been recorded pursuant to Section 12.01 is sold, conveyed or otherwise transferred in whole or in part,by the Owner of that Parcel, the property shall remain subject and subordinate to the Assessment Lien created by reason of the delinquency described in the recorded Notice of Assessment Lien. 12.03 Superiority of Assessment Lien. The Assessment Lien provided for above shall be superior to any and all other charges, liens and encumbrances which hereafter in any manner may arise or be imposed upon any portion of the Project,regardless of the order of filing of any of the foregoing;provided, however, that the Assessment Lien shall in all events be subject and subordinate to: (a)Liens for taxes and other public charges which by applicable law are expressly made superior to the lien of the Assessment Lien; (b)Any mortgages, trust indentures, deeds of trust, or security instruments of any kind recorded in the office of the County clerk and recorder prior to the date of recordation of a Notice of Assessment Lien; provided, however, that all liens recorded subsequent to the recordation of a Notice of Assessment Lien shall be junior and subordinate to the Assessment Lien created by reason of the delinquency described in the recorded Notice of Assessment Lien; and (c)The rights of any and all Occupants occupying any portion of the Project under written leases, whether the lease at issue was dated and/or recorded before or after the Assessment Lien at issue. If an Owner is delinquent in paying any amounts due under this Declaration,and as a result of the delinquency a Notice of Assessment Lien is recorded as provided in this Declaration, the Person recording the Notice of Assessment Lien may record subsequent Notices of Assessment Lien as to any amounts owed by that Owner to the same person which become delinquent after the recordation of the initial Notice of Assessment Lien, and the priority of the Assessment Lien as to any amounts thereafter becoming delinquent shall be fixed as of the date of recordation of the initial Notice of Assessment Lien, but only if the initial Notice of Assessment Lien has not been discharged. A person may prosecute a single Assessment Lien foreclosure action as to amounts delinquent at the time a Notice of Assessment Lien is recorded and as to amounts thereafter becoming delinquent, up to and including the time a final judgment is rendered in the action. 12.04 Release of Assessment Lien. Within 10 days after the curing of any default for which a Notice of Assessment Lien was recorded, the Person who recorded the Notice of 34 2247808 11111111111111111111111111 Page: 35 of 47 lllllll1111 1 11111111111111111 11 109/200 fi 02.59P Shelley Vance—Gallatin Cc MT MISC 349.00 Assessment Lien shall record an appropriate release of any Notice of Assessment Lien upon payment by the defaulting Owner of a reasonable fee,to be determined by the person recording the Notice of Assessment Lien, to cover the costs of preparing and recording the release,together with the payment of such other costs, including,without limitation, reasonable legal fees,court costs, interest, and fees, as that Person shall have incurred in connection the Assessment Lien. Any Assessment Lien relative to which suit has not been filed and a lis pendens recorded in the records of Gallatin County,Montana within one(1)year after the date of the recordation of the Assessment Lien, shall automatically be rendered null, void and of no further force or effect. The foregoing nullification of any Assessment Lien shall be self-operative and shall not require the execution or recordation of any further documents. 12.05 Litigation of Assessment Lien. Notwithstanding any provision contained in this Declaration, any Owner shall have the right to contest,in a court of competent jurisdiction, the recordation of any Notice of Assessment Lien against the property within the Project owned or occupied by that Owner on the basis that the recordation of the Notice of Assessment Lien or the amounts claimed to be delinquent in the Notice of Assessment Lien are incorrect or improper under the provisions of this Declaration. The prevailing party in the action shall be entitled to recover from the other party or parties its reasonable attorneys' fees incurred in connection with the action. ARTICLE XIII RESALE RESTRICTIONS 13.01 Riga t of First Refusal. The Declarant will have a right of first refusal, on the terms and conditions set forth in this Article, with respect to each Parcel in the Project. The right of first refusal will be binding on all Parcels and all Owners throughout the term of this Declaration. 13.02 Negotiation Before Marketing. If an Owner wishes to attempt to sell its Parcel, then before attempting to market the Parcel or solicit offers to purchase the Parcel, the Owner will inform the Declarant in writing of the Owner's intent to sell the Parcel, and will then enter into good faith negotiations for sale of the Parcel to the Declarant on mutually acceptable terms and conditions. If despite such good faith negotiations the Owner and the Declarant cannot reach a mutually acceptable agreement under which the Owner will sell the Parcel to the Declarant, then the Owner may attempt to market the Parcel to third parties, subject to the requirements of this Article. 13.03 Notice of Intent to Sell.No Owner will have the right to sell or otherwise transfer its Parcel to any person other than the Declarant unless and until the Owner has complied with the following requirements: (i)If the Owner enters into a good faith,bonafide contract to sell or otherwise transfer its Parcel to a person other than the Declarant, then the Owner must promptly deliver a complete copy of the sale contract, or a complete summary of the terms of any 35 l llllll IIIII III II IN 1111 2246 of 47 Shelley Vance-Gallatin Ca MT MISC 349.00 oral sale contract, to the Declarant, together with a written notice advising the Declarant that unless the Declarant exercises the right of first refusal granted by this agreement within ten(10)business days, then the Owner intends to sell or transfer the Parcel to the third party in accordance with the terms of the sale contract attached to the notice. The written notice described in this paragraph is referred to in this Article as a "Notice of Intent to Sell." (ii)Upon receipt of a Notice of Intent to Sell and a copy of a sale contract,the Declarant will have a period of ten(10)business days in which to advise the Owner in writing that the Declarant intends to purchase the Parcel from the Owner on terms and conditions identical to those set forth in the sale contract attached to the Notice of Intent to Sell. (iii) if within ten(10)business days after receipt of a Notice of Intent to Sell,the Declarant delivers a written notice to the Owner stating that the Declarant has elected to purchase the Parcel on the terms and conditions set forth in the sale contract attached to the Notice of Intent to Sell,then the Owner will transfer good and marketable title to the Parcel to the Declarant on those terms and conditions. (iv) If the Owner does not receive a written notice stating that the Declarant has elected to purchase the Parcel within ten(10)business days after the Declarant receives a Notice of Intent to Sell, or the Declarant notifies the Owner in writing that the Declarant has decided not to exercise the right of first refusal provided for in this Article,or the Declarant fails to purchase the Parcel on the terms and conditions set forth in the sale contract attached to the Notice of Intent to Sell, then the Owner may sell the Parcel to the third party on the terms and conditions set forth in the sale contract attached to the Notice of Intent to Sell. 13.04 Transfers Exempt From Right of First Refusal. The Owner will not be required to comply with the requirements of this Article, and the Declarant will not have the right to exercise the remedies provided for in this Article, in the following situations: (1)Transfers involving only the Owner. If the Owner consists of two or more individuals and/or entities, and any of those individuals or entities sells that party's interest in the Parcel to one or more of the other individuals and/or entities which comprise the Owner. (ii)Death. If the Owner is an individual, and the Parcel is transferred upon the death of the Owner to a third party by action of law or through probate proceedings. (iii)Divorce. If the Owner's interest in the Parcel is transferred to the Owner's spouse in the course of divorce proceedings. 36 11111111111111111111111111111111 hilt llllllll llll llll 2247 f 47 111g09/200602?59P Shelley Vance-Gallatin Co MT MISC 349.00 (iv) Foreclosure. The Parcel is transferred to a third party by foreclosure proceedings,by trustee's sale or other non-judicial foreclosure proceedings,by forfeiture of the Owner's rights under a contract for deed, or by deed in lieu of foreclosure. (v)Execution of judgment. The Parcel is transferred to a third party at sheriffs sale in connection with the execution of a judgment which has attached to the Parcel. (vi)Bankruptcy or regulatory proceedings. The Parcel is transferred to a third party in connection with bankruptcy proceedings or any regulatory receivership, conservatorship or liquidation proceedings involving the Owner. (vii)Gifts. The Parcel, or any interest in the Parcel, is transferred to a third party without consideration, or for less than full consideration, as a gift. 13.05 Effect of Failure to Comply with this Article. If a Parcel or any interest in a Parcel is transferred to any person without satisfying the requirements of this Article, or on terms other than those set forth in a Notice of Intent to Sell, then the Declarant will be entitled to purchase the Parcel from the transferee at any time within two(2)years after the Declarant receives actual knowledge of the transfer or the violation of the requirements of this Article for the amount that the transferee paid for the Parcel. The Declarant will not waive its rights under this Article, or be estopped from exercising its rights under this Article, as a result of any delay in exercising those rights after a transfer which violates this Article. ARTICLE XIV MISCELLANEOUS 14.01 Notices. Any notice,payment, demand, offer, or communication required or permitted to be given by any provision of this Declaration shall be deemed to have been sufficiently given or served for all purposes if personally delivered, sent by registered or certified mail, postage and charges prepaid, or by Federal Express or other reputable overnight courier or delivery service, addressed as follows: To Declarant: Mitchell Development Group, LLC P. O. Box 738 Great Falls, MT 59403 Attention: Theodore J. Mitchell Any such notice shall be deemed to be given(i)on the date of personal service upon the person to whom the notice is addressed or if such person is not available the date such notice is left at the address of the person to whom it is directed, (ii)three (3)days after the date the notice is deposited with the United States Post Office,provided it is sent prepaid,registered or certified mail, return receipt requested, and(iii)on the date the notice is delivered by a reputable 37 111111111II11111111111111111111111111111 II11111111111 2247808 47 Shelley Vance-Gallatin Co MT MISC 349.00 professional courier service(including Federal Express,Express Mail,UPS, or similar operation) to the address of the person to whom it is directed,provided it is sent prepaid. 14.02 Binding Effect. All of the limitations, covenants, conditions, easements,and restrictions contained in this Declaration shall attach to and run with each Parcel and shall benefit or be binding upon the successors and assigns of the respective Owners. This Declaration and all the terms, covenants, and conditions contained in it shall be enforceable as equitable servitudes in favor of all or any portion of the Parcels. 14.03 Breach Shall Not Permit Termination. It is expressly agreed that no breach of this Declaration shall entitle any Owner to cancel,rescind,or otherwise terminate this Declaration, and such limitations shall not affect in any manner any of the rights or remedies which the Owners may have by reason of any breach of this Declaration. 14.04 Legal_ Action. If any of the Owners breaches any provision of this Declaration,then any other Owner may institute legal action against the defaulting Owner for specific performance, injunction,declaratory relief, damages, or any other remedy provided by law. In addition to the recovery of any amounts expended on behalf of the defaulting Owner, the prevailing Owner shall be entitled to recover from the losing Owner such amount as the court may adjudge to be reasonable attorneys' fees. 14.05 Breach-Effect on Mortgagee and Right to Cure. Breach of any of the covenants or restrictions contained in this Declaration shall not defeat or render invalid the lien of any Mortgage made in good faith, but all of the foregoing provisions, restrictions, and covenants shall be binding and effective against any Owner of any portion of the Project who acquires title by foreclosure, by trustee's sale,or by deed in lieu of foreclosure or trustee's sale; provided, however, that any such Owner who acquires title by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's sale shall take title free of any liens created or provided for under this Declaration,though otherwise subject to the provisions of this Declaration. Notwithstanding any other provision in this Declaration for notices of default,the Mortgagee of any Owner in default under this Declaration shall be entitled to notice of the default, in the same manner that other notices are required to be given under this Declaration; provided, however, that the Mortgagee shall have,prior to the time of the default, notified the Owner giving the notice of default of the Mortgagee's interest and mailing address. If any notice is given of the default of an Owner and the defaulting Owner has failed to cure or commence to cure that default as provided in this Declaration, then the Owner giving the notice of default covenants to give the Mortgagee(which has previously given the notice described above to the Owner)under any Mortgage affecting the Parcel of the defaulting Owner an additional notice given in the manner provided above, that the defaulting Owner has failed to cure the default and the Mortgagee shall have thirty(30)days after the additional notice to cure the default, or, if the default cannot be cured within thirty(30) days, diligently to commence curing within such time and diligently pursue such cure to completion within a reasonable time after the notice of default. The giving of any notice of default or the 38 IIIIIIIIIII 2247808 o47IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Shelley Vance-Gallatin Cc M7 MISC 349.00 failure to deliver a copy of the notice to any Mortgagee will not create any liability on the part of the Owner which declares a default. 14.06 Effect on Third Parties. Except for Section 13.05 which is for the benefit of Mortgagees, the rights, privileges, or immunities conferred under this Declaration are for the benefit of the Owners and not for any third party. 14.07 No Partnership.Neither this Declaration nor any acts of the Owners shall be deemed or construed by the parties to this Declaration, or any of them, or by any third person, to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association between any of the Owners to this Declaration. 14.08 Modification. Except as otherwise provided in this Declaration,this Declaration may be amended and/or supplemented by a writing signed by Declarant and by the Owner(s)to be bound by the terms and provisions of such amendment or supplement and consented to by the Mortgagee(s)of the affected Parcels,without the consent of any other Persons or Occupants; provided that Declarant shall have the right to(1) locate with specificity any of the easements created pursuant to Section 4.02, (ii) revise the Site Plan(as provided in Section 5.01), (iii) subject any other land presently outside of the Entire Property to the provisions of this Declaration,by recording with the County Recorder an amendment to this Declaration executed only by Declarant, without the consent of any other Owner or Occupant, and/or(iv)modify the requirements of this Declaration as it pertains to any Parcel without the consent of any Person other than the affected Owner. If a request to change or alter this Declaration is made by any "institutional lender," as defined in this Section, proposing to extend credit to be secured by a first trust indenture,first deed of trust, or first mortgage on the interest of any Owner within the Project, in order to (i) clarify the rights of that lender under this Declaration and/or(ii) otherwise better secure to the lender its ability to protect its security, consent to the changes or alteration of this Declaration shall not be unreasonably withheld by any Owner or other person or entity whose consent or approval of the changes or alteration is required by this Declaration. The term"institutional lender," as used in this Section shall be deemed to mean any bank, savings or building and loan association, trust, or other similar institutional type of lender(including loan service correspondent companies designated by any such lender). 14.09 Severability. If any term, covenant, condition,provision, or agreement contained in this Declaration is held to be invalid, void, or otherwise unenforceable,by any court of competent jurisdiction, the holding shall in no way affect the validity of enforceability of any other term, covenant, condition, provision,or agreement contained in this Declaration. 14.10 Governing Law. This Declaration and the obligations of the Owners under this Declaration shall be interpreted, construed, and enforced in accordance with the laws of the State of Montana. 39 11111111111111i 1111111i illl IIIII illll 11111111illlllllil � �P Shelley Vance-Gallatin Cc MT MISC 349.00 14.11 Terminology. Captions. All personal pronouns used in this Declaration,whether used in the masculine, feminine, or neuter gender, shall include all other genders; the singular shall include the plural and vice versa.Article and Section titles or captions contained in this Declaration are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Declaration or any provisions of this Declaration. The Exhibits attached hereto are incorporated herein by this reference. 14.12 Consent. In any instance in which any Owner shall be requested to consent to or approve of any matter with respect to which consent or approval is required by any of the provisions of this Declaration, the consent or approval or disapproval shall be given in writing. 14.13 Estoppel Certificate. Each Owner severally covenants that upon written request of any other Owner it will issue to the other Owner or to any prospective Mortgagee or purchaser of the other Owner's Parcel an Estoppel Certificate stating: (a)whether the Owner to whom the request has been directed knows of any default under this Declaration and if there are known defaults specifying the nature of those defaults; (b)whether to its knowledge this Declaration has been assigned, modified, or amended in any way(and if it has,then stating the nature of the modifications or amendments); and(c)whether to the Owner's knowledge this Declaration as of that date is in full force and effect. 14.14 Not a Public Dedication. Nothing contained in this Declaration shall be deemed to be a gift or dedication of any portion of the Project to the general public or for the general public or for any public purpose whatsoever, it being the intention of Declarant that this Declaration shall be strictly limited to and for the purposes expressed in this Declaration. 14.15 Release. If an Owner sells,transfers, or assigns its entire Parcel or its interest in its Parcel, it shall, except as provided in this Declaration,be released from its unaccrued obligations under this Declaration from and after the date of the sale, transfer or assignment. It shall be a condition precedent to the release and discharge of any Grantor or assignor Owner from its unaccrued obligations under this Declaration that the following conditions are satisfied: (a)the Grantor or assignor shall give notice to the Declarant of the sale, transfer, conveyance, or assignment prior to the filing for record of the instrument effecting the same, (b)the Grantor or assignor shall pay all monetary sums then owed under the terms of this Declaration, and(c)the transferee shall execute and deliver to the Declarant a written statement in recordable form in which: (i) the name and address of the transferee shall be disclosed; and (ii) the transferee shall acknowledge its obligation under this Declaration and agree to be bound by this Declaration and perform all obligations under this Declaration in accordance with the provisions of this Declaration. Failure to deliver this written statement shall not affect the running of any covenants contained in this Declaration with the land, however, it shall constitute a default by the transferee. In addition to those rights set forth elsewhere in this Declaration, Declarant shall have the right, from time to time, to transfer or assign some or all of its rights and obligations hereunder to 40 1111111111111111111111111111111111111111111111111111111 Page: 41 of 47 2247808p Shelley Vance-Gallatin Cc MT MISC 349.eo (i} any successor or assign who has or takes title to any portion of the Entire Property for the purpose of development and/or resale in the ordinary course of business, or(ii) an association of Owners established and formed for the purpose of assuming and performing the rights and obligations of Declarant hereunder; and in each case as so designated as "Declarant" in a recorded instrument executed by the immediately preceding Declarant. In such event, such immediately preceding Declarant shall be released of all unaccrued liabilities and obligations so transferred or assigned. Anything in this Section to the contrary notwithstanding, it is expressly understood and agreed that no sale, transfer, or assignment or written acknowledgment by the transferee of its obligations under this Declaration shall effectuate a release of its transferor with respect to obligations which accrued prior to the transfer. 14.16 Time of Essence. Time is of the essence with respect to the performance of each of the covenants and agreements contained in this Declaration. 14.17 Excuse for Nonperformance. Each Owner shall be excused from performing any obligation or undertaking provided in this Declaration,except any obligation to pay any sums of money under the applicable provisions of this Declaration(unless the payment is conditioned upon performance of any obligation or undertaking excused by this Section), if and so long as the performance of the obligation is prevented or delayed,or hindered by act of God, fire, earthquake, floods, explosion,actions of the elements,war, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment facilities, materials, or supplies in the ordinary course on the open market, failure of normal transportation, strikes, lockouts, action of labor unions, condemnation, requisition, laws, orders of governmental agencies, approvals, or permits despite the exercise of due diligence and best efforts by an Owner or any other cause, whether similar or dissimilar to the foregoing, not within the reasonable control of the Owner, other than the Iack of or inability to obtain funds. 14.18 Duration. This Declaration and each term, easement, covenant, restriction, and undertaking of this Declaration will remain in effect for a term of sixty(60)years from the its recordation date and will automatically be renewed for successive ten(10) year periods unless the Owners owning two-thirds or more of the land comprising the Project elect in writing not to so renew. 14.19 Waiver of Default.No waiver of any default by any Owner shall be implied from any omission by any other Owner to take any action in respect of the default if the default continues or is repeated.No express written waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in the express waiver. One or more written waivers of any default in the performance of any term, provision, or covenant contained in this Declaration shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision, or covenant or any other term,provision, or covenant contained in this Declaration. The consent or approval by any Owner to or of any act 41 11111111111111111111111111111111111111111I1111 llf 11 2247$47 0 111 g0912006 f 02:59P Shelley Vance-Gallatin Co MT MISC 349.00 or request by any other Owner requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any Owner by this Declaration shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or if any other right or remedy at law or in equity which any Owner might otherwise have by virtue of a default under this Declaration,and the exercise of one right or remedy by any Owner shall not impair the Owner's standing to exercise any other right or remedy. 14.20 Common Ownership. The ownership of all Parcels in the Project by the same Person shall not result in the termination of this Declaration. [SIGNATURES ON NEXT PAGE] 42 I IIIIII IIIII IIIII flfllf f III full fllllll III IIII I ?zof 47 a f III Iffl 04�9l2006 02.59P Shelley Vance-Gallatin Ca MT MISC 349.00 EXECUTED as of the date first written above. MITCHELL DEVELOPMENT GROUP, LLC, a Montana limited liability company By N eodore J. Mitchell Its: Operating Manager STATE OF MONTANA) ss. COUNTY OF 'n ) On the jeday ofbLr , 2006, before the undersigned, a Notary Public,duly commissioned and sworn,personally appeared Theodore J. Mitchell, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as the Operating Manager of MITCHELL DEVELOPMENT GROUP, LLC,a Montana limited liability company, and acknowledged to me that such company executed the within instrument pursuant to its articles of organization and operating agreement. IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official seal the day and year in this certificate f{-iT t above written. ` ' ' U s ARI,q�••4_.T�A#PIEWFOR HE SrWrE Or MVV7;;vAIA Sding at:r. `l uma vr.' /y nhW& STEAL - • fir ; My Commission Expire p , . .'��� OF MO X\\` 1111t► 43 2247808 111111111111 I1111 1111111111111111111111111111111 Ill 1111 1Page 44 1,0912006 f 0247 :69P Shelley Vance-Gallatin Co MT MISC 349.00 Exhibit"A" Legal Description of Entire Property Tract 2A, of the Amended Plat of West College Minor Subdivision#195A,being situated in the NW1/4 of Section 14,and the NE1/4 of Section 15, Township 2 South, Range 5 East,P.M.M., City of Bozeman, Gallatin County, Montana. 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